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III 
MUNICIPAL  GOVERNMENT 


STUDIES  IN  HISTORY,  ECONOMICS  AND  PUBLIC  LAW 

EDITED  BY 

THE  UNIVERSITY  FACULTY  OF    POLITICAL  SCIENCE 
OF  COLUMBIA  COLLEGE. 

Volume  V]  [Number  3 

MUNICIPAL  GOVERNMENT 

IN 

MICHIGAN  AND  OHIO : 


A  STUDY  IN  THE  RELATIONS  OF  CITY  AND 
COMMONWEALTH 


BY 

DELOS  F.  WILCOX,  Ph.D., 

University  Fellow  in  Administrative  Law,  Columbia  University  in  the  City 

of -New  York 


COLUMBIA  UNIVERSITY 

IN  THE  CITY  OF  NEW  YORK 

MAY,  1896 

Price  $1 


s 

f? 


TABLE  OF  CONTENTS. 


CHAPTER  I. 

INTRODUCTORY. 

PAGE- 

I.  Necessity  of  studying  the  legal  relations  of  cities II 

II.   Evils  of  special  legislation , 12 

Expense  to  the  state 12 

Local  irresponsibility 12 

Legislative  corruption 13 

State  interference  in  local  affairs 13 

III.  Constitutional  remedies 13 

Guarantee  of  local  choice  of  local  officers 13 

Prohibition  of  special  legislation 13 

Granting  to  cities  the  right  to  form  their  own  charters 14 

IV.  Geographical  distribution  of  constitutional  limitations  and  their  re- 

lation to  local  institutions .    .  16 

The  belt  of  states  which  have  forbidden  special  legislation 16 

Three  types  of  local  organization 17 

Special  legislation  and  local  self  government 17 

Contrast  between  states  with  the  Pennsylvania  type  and  those  with 

the  New  York  type 19 

V.   Michigan  and  Ohio  as  typical  states . 20 

The  origins  of  their  population 21 

Their  local  institutions 21 

VI.  Detroit  and  Cleveland  as  typical  American  cities 22^ 

Largest  cities  are  not  typical 22 

Intermediate  position  of  Cleveland  and  Detroit 23 

VII.   Outline  of  the  plan  of  study   .    .        24 

CHAPTER  II. 
CONSTITUTIONAL  PROVISIONS  FOR  CITIES  IN  MICHIGAN. 

I.    The  Convention  of  1850  and  its  -work 25 

Private  and  municipal  corporations  distinguished 25 

Provisions  for  cities  adopted 26 

History  of  the  section  regarding  the  choice  of  local  officers 27 

II.   The  Convention  of  iSbf 27 

Propositions  for  general  legislation 28 

Evils  of  special  legislation 29 

Choice  of  local  officers 30 

Plea  for  local  self-government 31 

Influence  of  party  politics 31 

Attack  on  the  board  system 31 

What  is  a  city  ? 32 

The  spirit  of  the  convention 32 

(v) 


vi  CONTENTS. 

PAGE 

III.   The  Constitutional  Commission  of  1873 32 

Its  composition 33 

Provisions  for  cities 33 

CHAPTER   III. 

THE  DOCTRINE  OF  LOCAL  SELF-GOVERNMENT  IN  MICHIGAN. 

I.   Outline  of  its  early  development .  35 

The  ordinance  of  1787 35 

Michigan  under  Gov.  Hull 36 

Gov.  Cass'  influence 36 

The  state  constitutions 36 

II.    The  doctrine  of  the  Supreme  Court 36 

The  Detroit  water  commissioners  of  1853 36 

The  Police  Board  of  1865,  People  vs.  Mahaney 37 

Legislative  commissions  for  Detroit 37 

The  first  board  of  public  works  case,  People  vs.  Hurlbut 37 

Judge  Christiancy's  opinion 38 

The  constitution  interpreted  historically 38 

Judge  Campbell's  opinion 39 

People  vs.  Mahaney  explained 39 

The  law  back  of  the  written  constitution 40 

Judge  Cooley's  opinion 41 

The  right  of  local  self-government 41 

Local  choice  of  local  officers 42 

Judge  Graves'  opinion 42 

The  first  park  case,  Attorney  General  vs.  Lothrop 43 

Hubbard  vs.  The  Township  Board  of  Springwells 43 

Right  of  the  State  to  interfere  in  township  affairs  denied 43 

The  great  Detroit  park  case 43 

Distinction  between  general  and  local  municipal  functions 45 

The  second  board  of  public  works  case,  Attorney  General  vs.  Com- 
mon Council .    .  46 

The  council  an  essential  part  of  municipal  government 46 

Allor  vs.  Wayne  County  Auditors 47 

Constables  cannot  be  displaced  by  State  police 47 

Torrent  vs.  Muskegon 47 

Implied  powers  of  cities 48 

The  board  of  elections  case,  Attorney  General  vs.  Board  of  Council- 
men  48 

The  bipartisan  requirement  unconstitutional 49 

Elections  are  a  municipal  function ....  49 

Summary  of  the  court's  doctrine 50 

CHAPTER  IV. 
CONSTITUTIONAL  PROVISIONS  FOR  CITIES  IN  OHIO. 

I.    The  early  development  of  special  legislation 51 

II.    The  convention  of  1851,  and  its  work 52 

General  hostility  to  corporations 52 

Prohibition  of  special  incorporation  acts 54 

General  municipal  organization  required 54 


CONTENTS. 


III.    The  convention  of  1873-74. 54 

New  and  more  stringent  prohibition  of  special  municipal  acts  proposed.  54 

Necessity  for  classification  recognized 55 

Special  legislation  and  local  autonomy 56 

Mr.  Herron's  speech.     General  laws  favorable  to  ring. rule 56 

Necessity  of  special  legislation 5^ 

Mr.  King's  speech 58 

The  failure  of  the  constitutional  limitations  of  1851 59 

Interference  of  cities  with  each  other  under  general  laws 59 

Financial  provisions  adopted  by  the  convention 61 

What  lesson  will  Ohio  learn  ? 6l 

CHAPTER  V. 

MUNICIPAL  LEGISLATION  IN  OHIO  UNDER  THE  CONSTITUTIONAL  LIMITATIONS 

OF  1851. 

I.   The  general  laws  of  1832  and  1833 63 

General  municipal  powers            63 

Classification  of  cities  and  villages 64 

Corporation  officers 64 

Limitations  on  the  taxing  and  borrowing  powers 65 

The  amendments  of  1853 65 

Classification  and  advancement .  66 

The  right  of  the  council  to  redistrict  the  city 67 

II.    Growth  of  special  legislation  prior  to  the  municipal  code  of  i86g   .    .  67 

Special  classifications  by  population 67 

Avowedly  special  acts 68 

Growth  of  cities  without  advancement  of  grade 69 

Provision  for  the  "  Eggleston  avenue  sewer  " 70 

Special  classification  upheld  in  Weiker  vs.  Potter \    .  71 

Apparent  effects  of  this  decision 71 

The  municipal  code  of  1869 72 

III.  Special  legislation  since  1870  under  the  influence  of  Supreme  Court 

decisions 72 

Special  act  fixing  Cincinnati's  corporate  limits  invalid 72 

Misleading  decision,  Walker  v;.  Cincinnati 73 

The  Cincinnati  Commercial  Hospital  cases 74 

The  State  vs.  Covington 75 

Dictum  with  reference  to  special  acts  in  general  forms 75 

The  dictum  carried  into  effect,  State  vs.  Mitchell 75 

Inconsistency  of  the  General  Assembly 76 

The  code  of  1878,  with  a  new  classification 77 

The  victory  of  the  General  Assembly 78 

Great  increase  of  strictly  special  legislation 78 

Number  of  special  acts  granting  financial  powers 79 

Progress  in  the  descriptive  character  of  "general  "  laws 80 

Defiance  of  the  court 82 

Further  classification  of  cities 83 

Table  showing  present  classification 84 

IV.  The  doctrines  of  the  Supreme  Court 85 

School  districts,  townships  and  counties 85 

Classification,  proper  and  improper 86 

Judge  Okey's  opinion 87 


CONTENTS. 


Division  within  the  court •  .    .    .    .  87 

The  awkward  logic  of  the  court's  decisions 88 

V.    General  remarks 89 

Unfortunate  results  of  the  court's  position 89 

The  question  of  necessity  of  special  legislation 89 

The  real  causes  of  special  legislation 90 

CHAPTER  VI. 

THE  DEVELOPMENT  OF  DETROIT'S  CHARTER. 

The  difficulty  of  logical  arrangement 91 

Political  periods 91 

I.   The  Military  f  eriod,  1610  to  1813 93 

Discovery  and  settlement 93 

First  incorporation 93 

The  failure  of  Hull's  government 94 

II.    The  Council  Period,  fS/j  to  1854 .    95 

The  influence  of  Lewis  Cass 95 

The  charter  of  1815 95 

The  charter  of  1824 96 

Changes  in  the  council  and  executive  officers 97 

Elections 98 

Financial  affairs 98 

Assessments 99 

The  schools loo 

Corporate  functions loo 

The  water  commissioners 101 

III.  The  Period  of  Moards,  1854  to  1889 *°2 

Changed  political  conditions 102 

The  legislation  of  1855 102 

The  charter  of  1857.     Name 103 

The  council  and  executive  offices 103 

Qualifications  for  office.     Removal 104 

Elections 105 

The  powers  and  duties  of  the  council 105 

Revenue,  finance  and  contracts 106 

Assessment  of  taxes 108 

The  Recorder's  Court 108 

Charter  amendments,  185910  1864 108 

The  Metropolitan  Police 109 

The  fire  department in 

Parks ,...in 

The  board  of  public  works 113 

Public  lighting 113 

The  board  of  health 114 

The  board  of  education 114 

Charities 115 

Changes  in  the  council 116 

Charter  amendments  of  1879  and  1881 117 

The  charter  of  1883 117 

Elections 118 

IV.  Mayor  Pingree^s  administration,  1889  till  the  present  time 119 

Political  changes 119 


CONTENTS 


IX 


PACK 

Increased  powers  of  the  mayor  and  the  people 1 19 

The  board  of  health 1 20 

The  public  lighting  commission 120 

The  street  railways 121 

Present  condition  of  Detroit .  121 

Mayor  Pingree's  ideas 121 

Need  of  home-rule  and  centralized  administration 122 

CHAPTER  VII. 
THE  DEVELOPMENT  OF  CLEVELAND'S  CHARTER. 

Division  into  periods 123 

I.    Village  organization 123 

Incorporation  of  1814 123 

Changes  in  the  village  charter 124 

II.    Cleveland  under  its  first  city  charter,  f8j6  to  f8j2 125 

The  organization  of  the  council 125 

The  powers  of  the  council 125 

The  mayor 126 

Financial  provisions 126 

The  school  system 127 

Subscriptions  to  railroad  and  plank  road  stocks 127 

The  excise  problem 128 

Changes  in  the  council  and  executive  offices 129 

Taxation 130 

Special  assessments 130 

The  mayor's  court 131  • 

III.  Cleveland  under  general  laws,  1852  to  i8qr 131 

Growth  in  population 131 

The  general  act  of  1852 131 

The  council,  its  organization  and  powers 132 

The  executive  officers  and  boards 132 

Taxation,  revenue  and  finance 133 

Extension  of  the  borrowing  power 134 

Taxation  and  finance  in  later  laws 135 

Deposits,  contracts  and  appropriations 136 

Special  assessments 137 

Reports  to  the  State  Auditor 137 

The  board  of  revision 138 

The  appointment  of  officers 139 

The  control  of  the  council  over  the  administration 140 

General  powers  of  the  city 141 

The  police  department  .    .  143 

The  fire  department      143 

The  bicameral  experiment 144 

Increasing  powers  of  the  mayor 145 

IV.  The  charter  of  1891 146 

The  legislative  department 146 

The  executive  department 147 

Duties  of  the  mayor  and  directors  149 

The  board  of  control  and  financial  commissions 150 

Contracts 151 

Amendments  to  the  charter .' 151 

The  new  system  applied  to  the  schools 152 


<  CONTENTS. 

PAGE 

CHAPTER  VIII. 
DETROIT  AND  CLEVELAND;  A  REVIEW  OF  THEIR  MUNICIPAL  EXPERIENCE. 

Organization  of  the  council 153 

Powers  of  the  council 154 

The  executive 155 

Administrative  boards 156 

The  direct  vote  of  the  people 157 

Finances 158 

Difference  in  recent  development 159 

CHAPTER  IX. 
THE  ELEMENTS  OF  A  CITY  CHARTER. 

Is  the  city  a  business  corporation? 160 

Size,  and  character  and  distribution  of  population,  affecting  forms  of 

charter 162 

The  four  types  of  city  organization 162 

Peculiar  American  conditions 163 

Lack  of  civic  spirit 165 

The  city  has  had  too  much  "  business  "  government 166 

American  political  prejudices 167 

Democracy  and  the  one-man  power 1 68 

The  problem  of  the  council 169 

Difficulties  in  the  way  of  the  district  system 170 

Proportional  representation 171 

Organization  of  the  administration 172 

The  mayor  system  not  ultimate 172 

Cleveland's  recent  experience 172 

The  future  of  democracy 174 

CHAPTER  X. 
THE  CITY  AND  THE  COMMONWEALTH. 

The  distrust  of  city  populations 175 

Conditions  of  city  life  unfavorable  to  political  capacity  . 175 

Democracy  being  tested  in  cities 176 

The  problem  of  central  control 177 

Hopeful  factors 177 

The  city's  position  in  law  not  settled 178 

Further  development  of  the  federal  idea 179 

Comparative  success  of  the  Ohio  and  Michigan  plans 179 

The  evils  to  be  remedied 179 


CHAPTER  I. 

INTRODUCTORY. 

I.  Necessity  of  studying  the  legal  relations  of  cities. 

DURING  the  last  few  decades  city  life  in  the  United  States 
has  been  vastly  expanded,  and  consequently  the  importance  of 
<:ity  governmental  functions  has  been  multiplied  many  times. 
This  one  fact  would  be  sufficient  to  justify  a  careful  study  of 
the  legal  foundations  of  the  city  in  our  polity.  The  great 
blunders  in  our  municipal  administration,  and  the  numerous 
and  formidable  attempts  of  recent  years  to  reform  and  recreate 
our  city  governmental  organizations,  make  such  a  study  an 
absolute  necessity.  In  order  that  improvement  may  come  in 
government  or  business,  the  first  thing  needful  is  to  know  the 
precise  existing  condition  of  affairs,  and  the  leading  causes 
that  have  operated  to  bring  it  about.  Reformers  too  often  for- 
get that  no  matter  what  ideal  state  we  are  coming  to,  we  must 
get  there  front  our  present  position. 

It  is  not  necessary  to  discuss  in  this  study  how  large  a 
sphere  government  should  take  to  itself  in  dealing  with  great 
aggregations  of  people.  But  however  much  it  does  undertake, 
that  much  it  ought  certainly  to  perform,  and  perform  in  the 
best  possible  way.  City  misgovernment  is  not  a  new  thing, 
born  in  the  last  decade  of  the  nineteenth  century.  For  some 
reason,  which  every  one  would  be  glad  to  understand  thor- 
oughly, we  have  had  bad  government  ever  since  we  have  had 
large  cities.  An  immense  amount  of  moral  energy  has  been 
spent  in  reformatory  efforts,  but  much  of  it  has  apparently 
gone  to  waste  through  ignorance  and  hasty  anger.  Asjn  all 
movements  for  reform,  these  efforts  have  taken  one  of  two 
329]  ii 


12  MUNICIPAL  GOVERNMENT  [330 

directions.  They  have  tried  either  to  get  new  and  better  laws, 
or  to  bring  about  a  better  enforcement  and  administration  of 
existing  laws.  A  good  deal  of  time  is  wasted  in  discussing 
which  of  these  two  methods  should  be  adopted,  for  we  must 
recognize  that  the  fundamental  force  in  every  real  advance- 
ment is  the  pressure  all  along  the  line.  The  brunt  of  the 
battle  for  the  triumph  of  conscience,  loyalty  to  the  highest 
ideals,  which  is  at  the  basis  of  all  good  citizenship  must  be 
borne  by  religion  and  ethics.  The  student  of  political  science 
has  for  his  task  to  find  the  ways  and  means  of  putting  into 
execution  the  dictates  of  the  public  conscience.  One  of  the 
most  important  parts  of  his  task  is  to  discover  the  general 
methods  of  legislation  and  the  general  forms  of  law  which  are 
most  conducive  to  economical  and  effective  administration. 

II.  Evils  of  special  legislation. 

By  the  middle  of  this  century  the  evils  of  local  and  special 
legislation  by  the  central  legislative  bodies  of  the  states  had 
already  become  quite  alarming.  These  special  laws  were 
occupied  chiefly  with  the  chartering  and  regulating  of  single 
corporations,  municipal  as  well  as  private.  There  were  two 
distinct  evils  involved  in  this  system.  First,  the  statute-books 
became  loaded  with  an  enormous  mass  of  purely  local  regula- 
tions, which  did  not  interest  the  people  as  a  whole,  while  a 
great  deal  of  the  legislature's  time  was  taken  up  in  their  pas- 
sage. The  results  were  long  legislative  sessions,  partial 
neglect  of  general  interests  and  increased  expense.  Second, 
laws  were  passed  for  individual  localities  with  no  sufficient 
guarantees  that  the  people  of  the  localities  wanted  or  needed 
such  laws.  Each  locality  had  one  or  more  representatives  in 
the  legislature,  and  they  practically  decided  what  local  bills 
should  pass.  Thus  no  deliberation  and  no  publicity  were  as- 
sured, and  very  often  measures  were  passed  on  petition  of 
comparatively  few  citizens  of  the  place  affected.  For  the 
theory  of  special  legislation  was  to  give  each  locality  what  it 


3  3  I  ]  IN  MICHIGAN  AND  OHIO.  j  3 

wanted ;  and  the  only  means  of  knowing  that,  was  through 
petitions  and  the  will  of  the  locally  chosen  members  of  the 
legislature.  From  these  two  evils,  inherent  in  the  system, 
there  followed  two  other  evils  of  a  political  nature.  The  or- 
dinary right  to  dictate  local  legislation  became  a  subject  of 
barter,  and  what  is  popularly  known  as  "log-rolling"  became 
a  common  method  of  forcing  through  special  bills.  On  the 
other  hand,  the  right  formally  reserved  to  the  general  legisla- 
ture of  passing  upon  local  bills,  became  a  dangerous  thing 
when  the  political  complexion  of  the  legislature  happened  to 
differ  from  that  of  any  particular  locality  of  importance.  For 
the  temptation  was  strong,  and  many  times  irresistible,  for  the 
party  having  power  in  the  central  government  to  interfere 
directly  with  local  matters,  and  exploit  the  local  administra- 
tion for  partisan  purposes.  Thus  we  see  that  in  unrestricted 
special  legislation  there  were  two  evils,  one  inherent  and  one 
resultant,  from  the  standpoint  of  the  state  at  large,  and  also 
from  the  standpoint  of  the  city.  On  the  one  side  the  mere 
bulk  of  legislation  caused  expense,  and  its  character  fostered 
unsavory  legislative  methods.  On  the  other  side,  legislation 
by  the  central  authorities  destroyed  municipal  responsibility, 
and  ended  in  state  interference  in  purely  local  affairs. 

III.   Constitutional  remedies. 

The  attempt  was  made  to  cure  these  evils  by  constitutional 
restrictions  on  the  local  legislative  powers  of  the  state  legisla- 
tures. The  usual  remedy  tried  was  the  absolute  prohibition  of 
special  legislation  for  cities.  But  New  York,  Michigan  and  Wis- 
consin, with  their  strong  spirit  of  local  self-government  embod- 
ied in  the  deliberative  town-meeting  and  the  supervisor  system 
of  county  government,  took  a  different  course.  Before  any 
state  had  attempted  to  forbid  special  legislation  for  cities,  these 
three  had  put  into  their  constitutional  law  a  guarantee  of  local 
autonomy  in  the  provision  assuring  to  localities  the  choice  of 
local  officers,  thus  forestalling  to  some  extent  the  secondary 


!4  MUNICIPAL  GOVERNMENT  [332 

evil  of  special  legislation  which  afterwards  became  so  promi- 
nent in  many  states,  namely,  the  interference  of  the  legislature 
for  partisan  purposes  in  the  appointment  of  local  officers.1 
Virginia  also  adopted  a  similar  provision  in  185 i.2  In  1851 
Ohio  and  Indiana  inaugurated  the  attempt  to  forbid  special 
municipal  legislation  by  constitutional  provisions.3  These  two 
states  had  no  deliberative  town-meeting,  or  supervisor  system, 
and  although  the  spirit  of  local  self-government  was  strong, 
still  they  received  their  institutions  and  population  more  largely 
from  Pennsylvania  and  the  South  than  from  New  York  and 
New  England.  It  was  natural,  therefore,  that  these  two  com- 
monwealths should  be  more  impressed  with  the  dangers  of 
special  legislation  to  the  state  as  a  whole,  involved  in  long 
sessions  of  the  legislature,  big  volumes  of  session  laws,  and 
"  log-rolling."  Two  other  states,  Iowa4  and  Kansas,5  adopted 
this  method  of  constitutional  restriction  before  the  War. 
Since  then  the  following  states  have  taken  similar  action  in  the 
years  mentioned :  Florida,6  1865;  Nebraska,7  1867;  Arkan- 
sas,8 1 868;  Illinois^  1870;  West  Virginia,  1872'°;  Texas"  and 
Pennsylvania,12  1873;  New  Jersey13  and  Missouri,14  1875  ;  Cali- 

1  N.  Y.  Constitution  of  1846,  art.  vi,  sec.  18,  art.  x,  sec.  2  ;  Wise.  Cons,  of  1848, 
art.  xiii,  sec.  9 ;  Mich.  Cons,  of  1850,  art.  xv,sec.  14,  interpreted  in  The  People  vs. 
Hurlbut,  24  Mich.,  44. 

2  Va.  Cons,  of  1851.  art.  vi,  sec.  34. 

3  Ohio  Cons,  of  1851,  art.  xiii,  sees.  I  and  6 ;  Indiana  Coni.  1851,  of  art.  x,  sec. 
14,  and  schedule,  paragraph  5. 

4  Iowa  Cons,  of  1857,  art.  iii,  sec  30,  art.  viii,  sec.*  I. 

5  Kansas  Cons,  of  1859,  art.  xii,  sees.  I  and  5. 

6  Florida  Cons,  of  1865,  art.  iv,  sec.  20. 

7  Nebraska  Cons,  of  1867,  art.  on  corporations,  sees.  I  and  4. 

8  Arkansas  Cons,  of  1868,  art.  v,  sees.  48  and  49. 

9  Illinois  Cons,  of  1870,  art.  iv,  sec.  20. 

10  West  Virginia  Cons,  of  1872,  art.  vi,  sec.  39. 

11  Texas  Cons.,  amendment  of  1873',  art-  x">  sec-  4°- 

12  Pennsylvania  Cons,  of  1873,  ar'-  "*»  sec-  7- 

13  New  Jersey  Cons.,  amendments  of  1875,  art.  iv,  sec.  7,  paragraphs  9  and  II. 

14  Missouri  Cons,  of  1875,  art-  ^v»  sec>  53»  art-  *x>  sec-  7°- 


333]  IN  MICHIGAN  AND  OHIO.  T^ 

fornia1  and  Louisiana,2  1879;  North  Dakota,*  South  Dakota* 
Wyoming5  and  Washington,6  1889;  Mississippi,7  1890; 
Kentucky,8  Minnesota*  and  Wisconsin,10  1892.  Of  these 
states,  Texas  in  1876  made  the  prohibition  applicable  only  to 
cities  with  less  than  10,000  inhabitants,11  and  Florida,  after 
having  embodied  it  in  two  constitutions,  omitted  it  from  the 
last  one  adopted  in  1887."  In  the  Louisiana  constitution  New 
Orleans  was  specially  excepted  from  the  provision.  Missouri, 
California  and  Washington  at  the  same  time  that  they  forbade 
special  municipal  legislation,  granted  to  all  cities  above  a  fixed 
population  the  right  to  frame  their  own  charters.13  Other 

1  California  Cons,  of  1879,  art.  xi,  sec.  6. 

2  Louisiana  Cons,  of  1879,  art.  46. 

'North  Dakota  Cons,  of  1889,  art.  ii,  sec.  69,  art.  vi, sec.  130. 
4  South  Dakota  Cons,  of  1889,  art.  iii,  sec.  23,  art.  x,  sec   I. 
6  Wyoming  Cons,  of  1889,  art.  iii,  sec.  27,  art.  xiii,  sec.  I. 
6  Washington  Cons,  of  1889,  art.  ii,  sec.  26,  art.  xi,  sec.  IO. 
7Mississippi  Cons,  of  1890,  art.  vii,  sec.  178. 

8  Kentucky  Cons,  of  1892,  sees.  59  and  156. 

9  Minnesota  Cons.,  amendment  of  1892,  art.  iv,  sec.  33. 

10  Wisconsin  Cons.,  amendment  of  1892,  art.  iv,  sec.  31. 

11  Texas  Cons,  of  1876,  art.  iii,  sec.  56,  art.  xi,  sees.  4  and  5. 

12  Florida  Cons,  of  1868,  art.  v,  sees.  17,  18,  21    and  22;  Cons,  of  1887,  art.  iiir 
sec.  24,  art.  viii,  sec.  8.     Sections  21  and  24  of  article  iii  are  interesting  : 

Sec.  21.  Special  or  local  acts  may  be  passed,"  Provided  that  no  local  or  special 
bill  shall  be  passed  unless  notice  of  the  intention  to  apply  therefor  shall  have  been 
published  in  the  locality  where  the  matter  or  thing  to  be  affected  may  be  situated, 
which  notice  shall  state  the  substance  of  the  contemplated  law,  and  shall  be  pub- 
lished at  least  sixty  days  prior  to  the  introduction  into  the  legislature  of  such  bill, 
and  in  the  manner  to  be  provided  by  law.  The  evidence  that  such  notice  has 
been  published  shall  be  established  in  the  legislature  before  such  bill  shall  be 
passed." 

Sec.  24.  "The  legislature  shall  establish  a  uniform  system  of  county  and  muni- 
cipal government,  which  shall  be  applicable,  except  in  cases  where  local  or  special 
laws  are  provided  by  the  legislature  that  may  be  inconsistent  therewith." 

"Missouri  Cons,  of  1875,  art-  ix>  sees.  16,  17,  24  and  25  ;  California  Cons,  of 
1879,  art.  xi,  sec.  8,  and  amendments  of  1887  and  1890;  Washington  Cons,  of 
1889,  art.  xi,  sec.  IO.  For  an  interesting  and  careful  account  of  these  provisions 
and  their  working,  see  Oberholzer,  Home  Rule  for  American  Cities,  Annals  of  the 
American  Academy  of  Political  and  Social  Science,  vol.  3,  pp.  736-763. 


16  MUNICIPAL  GOVERNMENT  [334 

states  have  adopted  other  constitutional  provisions  for  the  gov- 
ernment of  cities,  most  of  them  aimed  more  or  less  definitely 
at  the  evils  of  special  legislation.1  We  should  naturally  ex- 
pect that  these  evils  would  be  attacked  in  different  states  from 
different  points  of  view,  varying  with  the  character  of  local  in- 
stitutions, the  constitutional  frame  of  mind  of  the  people,  the 
peculiar  development  of  the  evils  to  be  remedied,  and  the  op- 
portunity for  taking  advantage  of  the  experience  of  other 
states. 

IV.  Geographical  distribution  of  constitutional  limitations  upon 
special  legislation,  and  their  relation  to  local  institutions. 

If  we  glance  at  a  map  of  the  United  States  with  a  table  of 
the  constitutional  provisions  of  the  commonwealths  with  refer- 
ence to  local  and  special  legislation  before  us,  we  shall  notice 
that  those  commonwealths  which  have  tried  to  prevent  special 
acts  in  reference  to  municipal  government,  comprise  a  belt 
through  the  central  part  of  the  country  running  without  a 
break  from  New  Jersey  to  Wyoming,  and  stretching  up  and 
down  the  Mississippi  Valley.  California  and  Washington,  on 
the  Pacific  slope,  and  Florida,  lie  entirely  outside  of  this  belt. 
If  we  omit  Florida,  which  has  gone  back  to  special  legislation, 
the  two  states  beyond  the  Rockies  are  the  only  ones  not  in- 
cluded in  this  belt.  It  is  true  that  there  is  little  in  the  way  of 
history,  institutional  development  or  location  common  to  this 
group  of  states  as  it  now  stands.  But  if  we  look  at  the  dates 
when  constitutional  prohibitions  of  special  legislation  were 
adopted,  we  see  that  the  movement  began  in  Ohio  and  Indiana, 
and  that  its  extension  to  the  extreme  northward  and  the  ex- 
treme southward  is  a  comparatively  recent  development.  Not 
till  1879  did  Louisiana  join  the  list,  and  Mississippi  and  Ken- 
tucky followed  in  1890  and  1892.  On  the  other  side,  the 

1  For  more  detailed  facts  and  references,  as  well  as  for  the  discussion  of  this  gen- 
eral question,  see  Prof.  Goodnow's  chapter  on  "  Constitutional  Limitations,"  in 
Municipal  Home  Rule,  pp.  56-98. 


335]  IN  MICHIGAN  AND  OHIO.  \>j 

Dakotas  formed  their  constitutions  as  late  as  1889,  and  Min- 
nesota and  Wisconsin  adopted  constitutional  amendments  for- 
bidding special  legislation  in  1892.  It  is  apparent  that  this 
movement  has  had  a  peculiarly  strong  impulse  in  those  com- 
monwealths which  stretch  off  to  the  west  from  Pennsylvania. 

There  are  three  well-recognized  types  of  local  organization 
in  the  United  States.  New  England  has  developed  the  town 
system,  while  the  south  has  developed  the  county  system.  In 
the  middle  and  western  states  we  find  the  mixed  or  township- 
county  system,  which  is  itself  differentiated  into  the  New  York 
and  Pennsylvania  systems.  In  the  New  York  plan  there  is  a 
deliberative  town-meeting  and  a  board  of  supervisors  repre- 
senting the  townships  in  the  county  government.  In  the 
Pennsylvania  plan  there  is  no  deliberative  town-meeting,  and 
the  county  is  governed  by  a  board  of  commissioners,  not 
representatives  of  the  several  townships.  Of  course,  New 
England  is  the  home  of  the  strongest  development  of  local 
autonomy,  but  the  deliberative  town-meeting  in  a  more  or  less 
attenuated  form  is  found  also  in  New  Jersey,  New  York, 
Michigan,  Wisconsin,  Minnesota  and  South  Dakota,  and  in 
parts  of  Illinois,  Nebraska,  and  North  Dakota.  Illinois  began 
with  the  county  system  in  1818,  but  introduced  the  county- 
option  plan  by  the  constitution  of  1848,  under  which  most  of 
the  counties  have  organized  on  the  New  York  plan.  A  simi- 
lar option  provision  was  introduced  into  the  Nebraska  consti- 
tution of  1875,  under  which  a  much  smaller  proportion  of 
counties  have  organized  townships.  The  Pennsylvania  plan 
is  prevalent  in  Pennsylvania,  Ohio,  Indiana,  Iowa,  Kansas  and 
Missouri,  while  the  county  system  in  one  form  or  another  has 
spread  over  all  or  most  of  the  remaining  states.1 

It  is  not  strange  that  the  strength  of  local  institutions 
should  have  a  marked  effect  on  the  constitutional  methods  of 

1  For  an  extended  account  of  the  various  systems  of  local  government  in  the 
Commonwealths,  see  Prof.  Howard's  book,  An  Introduction  to  the  Local  Cons. 
Hist,  of  the  U.  S. 


!g  MUNICIPAL  GOVERNMENT  [336 

dealing  with  city  legislation.  If  it  be  true,  as  a  perusal  of  the 
convention  debates  and  the  generally  recognized  way  of  pass- 
ing most  local  bills  would  seem  to  indicate,  that  special  legis- 
lation for  municipalities  originally  was  a  part  of  the  theory  of 
local  autonomy,  and  only  after  the  growth  of  large  cities  came 
to  be  used  for  purposes  of  central  interference,  we  should  ex- 
pect those  states  where  the  idea  of  local  self-government  is 
most  strongly  developed  to  be  slow  about  prohibiting  special 
legislation.  Looking  over  the  dates  again,  it  is  seen  that  of 
the  states  with  a  uniform  deliberative  town-meeting  system, 
New  Jersey,  in  1875,  was  the  first  to  prohibit  special  legisla- 
tion. Not  till  1889  and  1892  did  South  Dakota,  Minnesota 
and  Wisconsin  do  likewise.  The  adoption  of  a  political  experi- 
ment in  any  of  the  American  states  is  likely  to  be  imitated  in 
others,  where  there  is  a  like  need.  It  is  very  probable  that 
New  Jersey  was  influenced  by  the  action  taken  by  Pennsylvania 
in  1873.  In  like  manner  the  Dakotas,  Minnesota  and  Wis- 
consin were  undoubtedly  influenced  by  the  action  of  the  many 
states  which  had  adopted  the  provision  prior  to  1889.  It  may 
also  be  true  that  the  great  proportion  of  German  and  Scandi- 
navian inhabitants  in  the  latter  two  states  facilitated  the  change. 
I  do  not  know  how  much  the  old-world  experience  of  these 
classes  of  the  population  in  methods  of  city  government  by 
general  laws  may  have  directly  influenced  their  attitude  in  this 
country,  but  they  certainly  would  be  more  free  from  the  in- 
grained prejudices  and  traditions  of  the  New  England  town- 
meeting  system,  than  natives  of  the  northern  states  of  the 
Union  are.  In  considering  the  connection  between  the  idea 
of  local  self-government  and  special  legislation  in  these  states, 
it  must  also  be  remembered  that  the  town-meeting  of  the  west 
is  only  a  faint  copy  of  its  new  England  prototype,  while  the 
growth  of  cities  and  the  city  problem  followed  much  more 
closely  upon  the  settlement  of  the  country  in  the  west  than  in 
the  east.  It  is  also  an  important  consideration  that  special 
legislation  in  recent  years  has  tended  more  and  more  to  take 
the  form  of  central  interference  in  local  affairs. 


337]  IN  MICHIGAN  AND  OHIO.  ig 

On  the  other  hand,  we  find  that  by  1875  all  the  states  whose 
local  government  was  organized  on  the  Pennsylvania  plan  had 
prohibited  special  legislation  for  cities.  The  same  course  had 
been  followed  by  a  few  states  with  the  county  system,  as  well 
as  by  Illinois,  which  had  a  combination  of  the  New  York  and 
the  county  systems.  Uniformity  and  centralization  naturally 
go  together.  And  so  it  is  not  strange  that  the  states  having 
the  more  centralized  local  administrations  in  the  shape  of  the 
county  and  the  Pennsylvania  systems,  should  be  in  a  better 
frame  of  mind  for  requiring  uniform  municipal  legislation. 

If  now  we  look  at  the  attempts  made  to  guarantee  local 
autonomy  in  the  choice  of  municipal  officers,  we  see  that  New 
York,  Michigan  and  Wisconsin,  which  form  a  group  by  them- 
selves in  matters  of  local  organization,  all  put  cities  and  vil- 
lages on  the  same  general  basis  as  townships  and  counties,  as 
far  as  the  choice  of  officers  was  concerned.  Illinois  with  its 
mixed  system  not  only  prohibited  special  legislation,  but  also 
adopted  a  provision  authorizing  the  legislature  to  delegate  the 
power  of  local  taxation  to  the  corporate  authorities  of  the  local 
divisions.1  By  the  interpretation  of  the  Supreme  Court  this 
provision  was  given  practically  the  same  force  in  regard  to  the 
local  choice  of  local  officers,  as  was  given  to  the  more  specific 
provisions  in  the  three  other  states.2  It  may  be  supposed  that 
Virginia,  which  adopted  a  provision  similar  to  these  in  1851, 
was  influenced  by  the  example  of  New  York.  At  any  rate 
the  supposition  is  natural,  when  we  consider  that  Jefferson  was 
an  ardent  admirer  of  the  New  England  town-meeting,  and  the 
constitutional  changes  in  the  state  during  the  first  half  of  this 
century  were  along  the  line  of  introducing  local  election  dis- 
tricts and  elective  officers.3 

We  must  not  over-emphasize  the  influence  of  the  local  sys- 

1  Illinois  Cons,  of  1848,  art.  ix,  sec.  5  ;  Cons,  of  1870,  art.  ix,  sees.  9  and  10. 
1  Harward  v.  The  St.  Clair  and  Monroe  Levee  and  Drainage  Co.,  51  111.,  130, 
and  People  v.  The  Mayor,  etc.,  of  Chicago,  51  111.,  17. 
J  Howard,  op.  cit.,  pp.  231,  464. 


2Q  MUNICIPAL  GOVERNMENT  [338 

terns  of  government  existing  in  the  several  states  in  determin- 
ing their  respective  methods  of  dealing  with  the  evils  of  special 
legislation  for  cities.  For  the  spirit  of  local  self-government 
is  strong  in  all  the  states,  and  the  populations  and  institutions 
of  all  the  newer  states  are  a  great  deal  mixed.  This  much  is 
certain  however,  that  the  two  most  important  attempts  to  solve 
the  city  problem  in  constitutional  law  have  been  inaugurated 
by  states  having  the  township-county  system;  the  prohibition 
of  special  legislation  having  its  origin  in  states  with  the  Penn- 
sylvania type,  and  the  guarantee  of  the  localities  against  cen- 
tral interference  in  the  choice  of  their  officers  having  its  origin 
in  states  with  the  New  York  type.1  These  two  methods  are 
radically  different;  the  one  approaching  the  evils  from  the 
standpoint  of  the  central  governments  and  attempting  to  pro- 
tect them  from  the  burden  of  local  and  special  law-making, 
the  other  approaching  the  evils  from  the  standpoint  of  the 
localities  and  attempting  to  protect  them  from  the  interference 
of  the  central  authorities  in  local  affairs.  Here  we  have  the 
most  important  antithesis  in  the  methods  and  motives  of  plac- 
ing the  city  within  the  domain  of  constitutional  law. 

V.  Michigan  and  Ohio  as  typical  States. 

The  bulk  of  migration  from  the  eastern  states  to  the  western 
has  moved  along  nearly  parallel  lines,  but  the  farther  west 

1  This  fact  is  interesting  in  connection  with  Prof.  Howard's  statement,  page  135, 
that  "  the  western  township-county  plan  is  the  most  advanced  phase  of  local  insti- 
tutions." In  relerence  to  the  New  York  system,  he  says  on  page  158  :  "  In  short, 
the  representative  township-county  system  of  the  northwest  seems  to  be  one  of 
the  most  perfect  products  of  the  English  mind,  and  worthy  to  become,  as  it  not 
improbably  may  become,  the  prevailing  type  in  the  United  States."  It  will  be  in- 
teresting to  notice  the  comparative  success  of  the  two  methods  of  establishing  the 
status  of  the  city  in  constitutional  law,  emanating  from  the  Pennsylvania  and  the 
New  York  systems  of  local  institutions.  It  should  be  remarked  also,  as  bearing  on 
Prof.  Howard's  second  statement,  that  New  York  in  its  last -constitution,  1894,  has 
gone  beyond  all  other  states  in  its  efforts  to  provide  a  further  solution  for  the  prob- 
lems of  city  government.  New  England,  with  its  extreme  local  spirit,  has  done 
practically  nothing  to  establish  the  status  of  the  city  in  constitutional  law. 


339]  IN  MICHIGAN  AND  OHIO.  21 

the  streams  of  population  have  gone,  the  more  they  have 
mingled.  The  tendency  has  been  for  the  men  from  the  eastern 
states  to  carry  their  institutions  with  them.  In  view  of  these 
facts,  I  believe  that  Michigan  and  Ohio  offer  as  good  a  field 
for  the  study  of  the  constitutional  phase  of  the  city  problem 
as  any  two  states  in  the  Union.  On  the  one  hand,  they  are 
free  from  the  conservatism  which  we  think  of  as  attaching  to 
the  "old  thirteen;"  while  on  the  other  hand,  they  are  not 
far  enough  west  to  prevent  a  marked  differentiation  in  their 
population  elements.  Ohio  is  almost  a  daughter  of  Pennsyl- 
vania, as  Michigan  is  of  New  York.1  And  besides,  Michigan 
and  Ohio  are  old  enough  to  have  had  experience  with  the 
municipal  problem,  while  that  experience  has  not  been  dis- 
torted by  the  all-commanding  presence  of  some  one  great 
metropolis  like  New  York  city,  Philadelphia,  or  Chicago. 
Ohio  is  a  good  representative  of  the  Pennsylvania  plan  of  local 
institutions,  and  was  one  of  the  first  two  states  to  prohibit 
special  legislation.  And  this  constitutional  provision  has  cer- 
tainly been  interpreted  and  evaded  in  as  remarkable  a  manner 
in  Ohio  as  in  any  other  state.  Michigan  on  the  other  hand  is 
a  good  representative  of  the  New  York  system  of  local  organ- 

1  In  the  Michigan  Constitutional  Convention  of  1850,  which  framed  the  present 
constitution  of  the  state,  the  nativities  of  the  ico  members  were  as  follows:  New 
England,  38;  New  York,  43  ;  New  Jersey,  2;  Pennsylvania,  3;  Ohio,  2;  Mich- 
igan, Virginia  and  North  Carolina,  each  I  ;  foreign  countries,  9.  Of  the  native 
American  population  born  outside  of  the  state,  by  the  census  of  1850,  New  York 
alone  had  furnished  more  than  66 %  per  cent.,  which  added  to  the  contributions 
of  New  England  and  New  Jersey,  made  a  total  of  85  %  from  town-meeting 
states.  Pennsylvania  and  Ohio  furnished  13 %,  while  less  than  two  per  cent,  came 
from  the  southern  states. 

In  the  Ohio  Constitutional  Convention  of  1851,  which  also  framed  the  present 
state  constitution,  the  nativities  of  the  115  members  were  as  follows  :  Ohio,  31; 
New  England,  21  ;  New  York,  lo;  Pennsylvania,  27;  Delaware,  2;  Maryland, 
4 ;  Virginia,  8  ;  Kentucky,  3  ;  New  Jersey,  District  of  Columbia,  and  Tennessee, 
each  I ;  foreign  countries,  5.  Of  the  native  American  population  born  outside  of  the 
state,  by  the  census  of  1850,  Pennsylvania  alone  had  furnished  37$,  while  all  the 
town-meeting  states  together  had  furnished  a  little  less  than  33  <&  per  cent.  More 
than  28  %  had  come  from  southern  states. 


22  MUNICIPAL  GOVERNMENT  [340 

ization,  and  adopted  the  constitutional  guarantee  of  local 
choice  of  municipal  officers  just  a  year  before  Ohio  took  the 
other  course.  The  experience  of  Michigan  is  of  particular 
value  also  because  of  the  extreme  development  by  its  courts 
of  the  idea  of  local  self-government  as  a  doctrine  of  American 
constitutional  law. 

VI.  Detroit  and  Cleveland  as  typical  American  cities. 

In  order  that  we  may  study  intelligently  the  relations  of  the 
municipality  and  the  commonwealth  in  any  particular  state,  it  is 
needful  to  take  up  somewhat  in  detail  the  charter  history  of  at 
least  one  typical  city  in  that  state.  Only  in  this  way  can  we  see 
the  practical  workings  of  constitutional  theories.  Almost  every- 
where, in  Europe  as  well  as  in  America,  the  very  large  cities 
are  less  typical  of  the  systems  of  municipal  government  than 
are  cities  of  the  second  grade.  For  many  reasons  the  study  of 
the  government  of  Paris,  London,  New  York  and  Chicago 
throws  less  light  on  the  general  forms  and  conditions  of  city 
government  than  the  study  of  smaller  cities.  The  metropolis  is 
really  an  exception  in  matters  of  municipal  government,  partly 
because  such  a  city  overshadows  the  provincial  towns  by  its 
population  and  wealth,  and  partly  because  in  the  old  world  the 
metropolis  is  the  seat  of  the  national  government.  In  Amer- 
ica, where  municipal  government  derives  its  forms  and  func- 
tions from  the  several  commonwealths,  the  tendency  of  a  city 
like  New  York  or  Chicago  to  eclipse  other  cities  is  greater 
than  in  Europe.  At  the  same  time  the  delegation  of  the  most 
important  political  functions  to  the  Federal  government,  makes 
the  adminstration  of  a  great  metropolis  a  much  larger  affair  in 
proportion  to  the  total  sphere  of  state  government  than  it  is  in 
a  completely  nationalized  system.  And  further,  the  presence 
in  our  great  cities  of  such  large  masses  of  foreigners,  coming 
from  all  parts  of  Europe,  and  as  yet  unassimilated  by  the 
native  population  on  account  of  the  recent  and  quick  develop- 
ment of  these  cities,  has  helped  to  make  American  legislatures 


34 1  ]  IN  MICHIGAN  AND  OHIO.  2$ 

very  distrustful  of  the  political  capacity  of  the  population  of 
the  largest  cities.  It  has,  therefore,  been  the  rule  with  us  that 
the  larger  the  number  of  people  living  in  one  place,  and  the 
greater  and  more  varied  their  needs,  the  less  they  should  be 
allowed  to  care  for  themselves.1 

Of  the  American  cities  of  the  second  grade,  Cleveland  and 
Detroit  are  good  examples.2  Here  the  interference  of  the  cen- 
tral state  authorities  in  local  affairs  has  never  reached  the  de- 
gree attained  in  New  York,  for  instance,  but  the  problems  of 
city  government  have  nevertheless  claimed  enough  attention 
to  bring  about  much  special  legislation  and  some  violation  of 
the  principle  of  local  self-government.  As  American  cities  go, 
Detroit  and  Cleveland  have  been  fairly  well  governed.  At  the 
same  time  they  have  been  free  from  the  traditions  of  colonial 
charters,  and  yet  have  had  longer  experience  than  cities  like 
San  Francisco  and  Minneapolis.  They  are  distinctively  Amer- 
ican cities,  belonging  fully  to  the  national  period,  and  open  to 
all  the  tendencies  peculiar  to  our  political  system  making  for 
or  against  good  city  government.  It  is  significant  also  that 
Detroit,  under  the  Michigan  idea  of  local  self-government,  has 
in  recent  years  entered  upon  a  period  of  civic  development 
which  promises  to  put  the  "  city  of  the  straits  "  in  the  front 
rank'  of  self-governing  cities  in  the  course  of  time.  On  the 
other  hand,  Cleveland  under  Ohio's  nominal  system  of  general 
legislation,  has  within  the  last  few  years  secured  a  plan  of 
government  almost  unequaled  among  American  cities  in 
its  unity  and  centralization. 

1  This  is  perhaps  equally  true  of  European  cities,  notably  Paris.  But  in  their 
case,  this  attitude  of  the  central  government  is  largely  influenced  by  the  consider- 
ation of  the  political  influence  of  the  great  cities  as  being  national  capitals.  It 
might  be  safe  to  say  that  this  political  reason  in  Europe  has  about  as  much  weight 
as  the  distrust  of  foreign-born  citizens  has  in  this  country. 

1  Population,  1890:  Cleveland,  261,353;  Detroit,  205,876. 


24  MUNICIPAL  GOVERNMENT  [343 

VII.  Outline  of  the  plan  of  study 

Having  chosen  Michigan  and  Ohio  as  typical  states,  and 
Detroit  and  Cleveland  as  typical  cities,  for  the  study  of  Amer- 
ican municipal  government  in  its  constitutional  relations,  I  will 
devote  the  following  chapters  to  a  somewhat  detailed  con- 
sideration of  the  course  of  development  of  the  relations  be- 
tween city  and  commonwealth  in  the  two  states.  First,  the 
adoption  of  constitutional  provisions  and  the  debates  of  conven- 
tions in  Michigan  will  be  discussed.  Then  the  chapter  on  the 
doctrine  of  local  self-government  in  Michigan  will  show  the 
interpretation  given  to  the  constitutional  provisions  by  the 
Supreme  Court.  In  like  manner  two  chapters  on  Ohio  will 
deal  with  the  adoption  of  constitutional  provisions  and  their 
interpretation  by  the  legislature  and  the  Supreme  Court.  After 
this  a  chapter  each  will  be  devoted  to  the  charters  of  Detroit 
and  Cleveland,  and  another  chapter  will  present  a  review  and 
summary  of  the  main  features  of  their  governmental  experience. 
The  last  two  chapters  will  be  more  theoretical,  presenting  a 
few  general  conclusions  in  regard  to  the  elements  of  a  city 
charter  and  the  relation  of  the  city  to  the  state. 


CHAPTER  II. 

CONSTITUTIONAL  PROVISIONS  FOR  CITIES  IN  MICHIGAN. 

MICHIGAN  was  admitted  to  the  Union  as  a  state  in  1837, 
under  a  constitution  adopted  for  that  purpose  two  years  ear- 
lier. In  those  times  municipal  corporations  had  as  yet  attained 
constitutional  recognition  in  very  few  of  the  states.  The  only 
restriction  imposed  by  the  first  Michigan  constitution  on  the 
discretion  of  the  legislature  in  providing  for  the  government 
of  cities  and  towns  was  the  general  provision  that  no  act  of 
incorporation  should  be  passed  without  the  assent  of  at  least 
two-thirds  of  each  house  of  the  legislature.1 

I.   The  Convention  of  1850,  and  its  work. 

In  the  years  preceding  1850  Michigan  was  not  exempt  from 
the  general  corporation  craze,  and  the  reactionary  distrust  that 
caused  so  many  constitutional  prohibitions  of  special  incorpo- 
ration acts.  At  the  same  time  there  seems  to  have  been  a 
steady  growth  in  the  popular  faith  in  local  self-government. 
This  led  to  a  careful  distinction  in  the  constitution  of  1850  be- 
tween private  and  municipal  corporations.2  The  question  of 
prohibiting  special  legislation  for  cities  seems  not  to  have  been 
seriously  debated  in  the  convention.  It  is  true,  a  motion  was 
made  to  introduce  this  section,  "  It  shall  be  the  duty  of  the 
legislature  to  provide  by  general  laws  for  the  organization  and 
regulation  of  cities  and  villages."3  But  the  proposition  was 
voted  down  almost  at  once  after  a  delegate  "asked  if  gentle- 

1  Constitution  of  1835,  art-  x"»  sec-  2- 
1  Constitution  of  1850,  art.  xv,  sees.  I,  8  and  IO. 
'Convention  Debates,  1850,  p.  595. 
343]  25 


26  MUNICIPAL  GOVERNMENT  [344 

men  really  thought  it  possible  to  make  a  general  law  applica- 
ble to  all  the  particular  cases  that  must  necessarily  arise. 
The  wisdom  of  Minerva  and  of  the  gentleman  from  Kent  com- 
bined could  not  do  it."1  The  most  important  action  taken  by 
the  convention  was  in  regard  to  the  right  of  local  autonomy. 
The  following  provisions  were  adopted  by  the  convention  and 
are  the  constitutional  law  of  the  municipalities  of  the  state 
to-day : 

(1)  "The  legislature  may  confer  upon  organized  townships, 
incorporated  cities  and  villages,  and  upon  the  board  of  super- 
visors of  the  several  counties,  such  powers  of  a  local,  legisla- 
tive and  administrative  character  as  they  may  deem  proper."2 

(2)  "Municipal  courts  of  civil  and  criminal  jurisdiction  may 
be  established  by  the  legislature  in  cities."3 

(3)  "  The  legislature  shall  provide  for  the  incorporation  and 
organization   of  cities  and  villages,  and   shall    restrict   their 
powers  of  taxation,  borrowing  money,  contracting  debts,  and 
loaning  their  credit."  4 

(4)  "  Judicial  officers  of  cities  and  villages  shall  be  elected 
and  all  other  officers  shall  be  elected  or  appointed  at  such 
time  and  in  such  manner  as  the  legislature  may  direct."5 

(5)  "  Private  property  shall  not  be  taken  for  public  improve- 
ments in  cities  or  villages  without  the  consent  of  the  owner, 
unless  the  compensation  therefor  shall  first  be  determined  by 
a  jury  of  freeholders,  and  actually  paid  or  secured  in  the  man- 
ner provided  by  law."6 

(6)  "  Previous  notice  of  any  application  for  an  alteration  of 
the  charter  of  any  corporation  shall  be  given  in  such  manner 
as  may  be  provided  by  law."  7 

The  most  important,  perhaps,  of  these  provisions,  was  the 

'Convention  Debates,  1850,  p.  596. 

*  Constitution  of  Mich.,  art.  iv,  sec.  38.  3  Ibid.,  art.  vi,  sec.  I. 

*  Ibid.,  art.  xv,  sec.  13.  *  Ibid.,  art.  xv,  sec.  14. 
6  Ibid.,  art.  xv,  sec.  15.  *  Ibid.,zx\..  xv,  sec.  16. 


345]  IN  MICHIGAN  AND  OHIO.  2J 

fourth.  As  first  adopted  by  the  convention  and  referred  to  the 
"  Committee  on  Phraseology  and  Arrangement,"  it  read  thus : 
"All  judicial  officers  of  cities  and  villages  shall  be  elected  at 
such  time  and  in  such  manner  as  the  legislature  may  direct. 
All  other  officers  of  such  cities  and  villages  shall  be  elected 
by  the  electors  thereof,  or  appointed  by  such  authorities 
thereof  as  the  legislature  shall  designate  for  that  purpose." x 
The  committee  reported  it  back  to  the  convention  in  much 
briefer  form  :  "  Officers  of  cities  and  villages  shall  be  elected 
at  such  times  and  in  such  manner  as  the  legislature  may 
direct."2  On  motion  of  Mr.  McClelland,  of  Detroit,  it  was 
amended  to  its  present  form.  It  was  the  particular  desire  of 
the  convention  to  guarantee  the  popular  election  of  all  judicial 
officers,  for  they  had  been  the  last  to  yield  to  the  growing 
tide  of  democratic  feeling.  It  was  also  seen  that  some  muni- 
cipal officers  might  be  better  appointed  than  elected,  and  for 
the  sake  of  brevity  the  manner  of  their  appointment  was  left 
simply  to  the  discretion  of  the  legislature.  The  first  provision 
also,  which  gave  the  legislature  authority  to  delegate  local 
legislative  and  administrative  powers,  was  important.  It 
seems  to  have  been  intended  to  encourage  the  granting  of 
large  privileges  of  local  autonomy,  which  some  thought  the 
legislature  was  hardly  authorized  to  provide  for  in  the  absence 
of  special  constitutional  provisions. 

II.  The  Convention  0/1867. 

Another  convention  met  in  1867,  and  adopted  a  constitution 
which  the  people  rejected.  Its  provisions  and  the  debates 
over  them  are  valuable,  however,  as  furnishing  an  index  of  the 
growth  in  importance  of  the  city  problem,  and  as  showing  the 
remedies  that  suggested  themselves  to  the  constitution-makers 
of  thirty  years  ago.  In  the  early  days  of  the  convention  a 
resolution  was  introduced  to  the  effect,  "  That  the  committee 

'Convention  Debates,  1850, p.  594.  '  Ibid.,  p.  904. 


2g  MUNICIPAL  GOVERNMENT  [346 

on  organization  and  government  of  cities  and  villages  be  in- 
structed to  inquire  into  the  expediency  of  requiring  the  legis- 
lature to  provide  for  the  organization  of  cities  and  villages,  by 
general  laws,  and  prohibiting  amendments  thereof  of  a  merely 
local  character."1  Later,  when  the  article  on  the  Legislative 
Department  was  being  considered,  it  was  moved  to  add  to  the 
section  authorizing  the  grant  of  powers  to  local  bodies,  copied 
from  the  constitution  of  1850,  the  words:  "The  legislature 
shall  provide  by  general  laws  for  organizing  townships,  cities 
and  villages,  on  such  conditions  and  subject  to  such  regula- 
tions as  may  be  prescribed.  No  special  acts  to  create  any 
such  organization,  or  defining  their  powers,  except  cities  con- 
taining over  10,000  inhabitants,  shall  hereafter  be  passed  by 
the  legislature."2  In  the  discussion  of  this  proposition  many 
objections  were  raised  to  any  cast-iron  rule,  because  of  the  di- 
versity of  needs  in  various  cities  and  villages.  The  delegate 
who  had  introduced  the  resolution  quoted  above,  interpreted 
the  plan  now  under  discussion  as  meaning  that  the  legislature 
could  make  a  skeleton  of  law,  to  be  filled  in  by  the  particular 
localities,  according  to  their  needs.  In  the  objections  raised 
against  the  measure,  the  American  idea  of  enumerated  powers 
comes  out  very  strongly,  in  the  assumption  that  a  general  law 
could  not  enumerate  all  the  provisions  required  by  all  the 
localities.  The  second  part  of  the  proposition  was  voted  down, 
thirty-one  to  twenty-one. 

In  the  consideration  of  the  article  on  cities  and  villages, 
taken  up  in  committee  of  the  whole  later,  the  chief  debate  on 
municipal  matters  took  place.  The  first  question  arose  on  a 
motion  to  put  "  restrict "  in  place  of  "  regulate  "  in  the  section 
requiring  the  legislature  to  regulate  the  financial  powers  of 
cities  and  villages.3  It  was  argued  that  "  regulate  "  gave  the 
legislature  a  more  extended  power  over  the  internal  affairs  of 

1  Convention  Debates,  1867,  vol.  i.  p.  76.  *Ibid.,  vol.  ii,  p.  95. 

s  Ibid.,  vol.  ii,  p.  296. 


347] 


IN  All  CHI  CAN  AND  OHIO. 


the  corporation.  It  was  also  argued  that  such  a  result  was 
just  what  ought  not  to  be.  Although  the  substitution  was 
lost  in  committee,  it  was  afterwards  carried  in  the  convention.1 
The  question  of  special  legislation  was  again  introduced  by  a 
delegate  from  Bay  county,  in  a  motion  to  insert  the  words 
"  by  general  law  "  in  the  section  requiring  the  legislature  to 
provide  for  the  organization  of  cities  and  villages.2  The  mover 
said  in  debate  :  "  The  gentleman  says  it  takes  but  very  little 
time  for  the  passage  of  these  laws  ;  yet,  he  admits  that  when 
you  come  to  publish  them  at  last,  two-thirds  of  the  volumes  of 
our  session  laws  consist  of  legislation  of  this  kind.  Why  is 
this  ?  Because  some  one  person  interested  in  this  matter  sits 
down,  writes  out  a  charter,  sends  it  'to  a  member  of  the  legisla- 
ture, who  presents  it,  and  it  is  referred  to  the  committee  on 
corporations.  That  committee  do  not  read  it  or  examine  it; 
they  ask  the  member  who  presents  it,  if  it  is  all  right  ?  If  he 
says  it  is,  they  then  report  it,  and  recommend  its  passage  ; 
nobody  reads  it,  it  passes  and  goes  to  the  Governor  for  his 
approval,  and  very  likely  he  never  reads  it  ;  if  he  does  he  is  a 
very  persevering  man.  ...  There  are  few  members  of  the 
legislature  who  can  understand  the  necessities  and  wants  of 
any  particular  village.  They  do  not  profess  to  know  about  it  ; 
they  do  not  attempt  to  judge.  If  any  act  of  incorporation 
which  is  presented  suits  the  member  from  that  locality,  they 
do  not  consult  anybody  else  about  it.  The  people  of  the 
vicinity  are  not  consulted,  and  often  know  nothing  about  the 
charter  provided  for  them  until  the  act  is  passed,  and  fre- 
quently not  till  some  time  afterwards.  There  was  an  act  passed 
for  our  city  last  winter,  but  I  could  not  get  a  copy  of  it  until 
a  week  ago  ;  no  one  could  get  it  except  those  who  prepared 
it."3  He  also  spoke  of  the  general  incorporation  act  for  villa- 
ges, passed  in  1857,*  which  was  optional.  Most  villages  pre- 

1  Convention  Debates,  1867,  vol.  ii,  p.  360.     *  Ibid.,  vol.  ii,  p.  297. 

*  Ibid.,  vol.  ii,  pp.  297,  298,  July  23.  *Mich.  Laws,  1857,  pp.42o-43l. 


•jO  MUNICIPAL  GOVERNMENT  [348 

ferred  to  get  special  charters,  and  hence  the  legislature  was 
relieved  from  the  necessity  of  correcting  the  faults  of  the  gen- 
eral law.  But  his  arguments  were  of  no  avail.  The  motion 
received  fourteen  ayes,  and  the  noes  were  not  counted. 

The  most  prolonged  and  animated  debate  occurred,  how- 
ever, in  reference  to  the  election  and  appointment  of  local 
officers.  Two  years  earlier,  in  1865,  a  Republican  legislature 
had  concluded  that  the  Democratic  city  of  Detroit  could  not 
adequately  keep  the  peace  within  its  own  borders  and  prevent 
negro  riots ;  and  consequently  had  passed  a  law  putting  the 
Detroit  police  under  a  metropolitan  board  appointed  by  the 
Governor  and  Senate.1  The  standing  committee  reported  to 
the  convention  a  section  in  the  exact  words  of  the  existing 
constitution  ; — "  Judicial  officers  of  cities  and  villages  shall  be 
elected,  and  all  other  officers  shall  be  elected  or  appointed,  at 
such  time  and  in  such  manner  as  the  legislature  may  direct." 
The  time  had  passed  when  there  was  any  reason  for  singling 
out  judicial  officers  for  election,  and  Detroit's  recent  exper- 
ience had  thrown  interest  in  quite  another  direction.  Hence 
the  veteran  ex-Governor,  Mr.  McClelland  of  Detroit,  who  had 
been  a  member  of  both  previous  constitutional  conventions, 
moved  to  substitute  the  following :  "  Mayors  and  members  of 
the  common  council  in  cities  shall  be  elected  by  the  electors 
thereof  at  large  or  in  their  proper  wards  or  districts,  as  shall 
be  provided  by  law.  All  other  municipal  officers,  or  boards 
in  whom  is  vested  any  portion  of  municipal  authority,  shall  be 
elected  as  aforesaid  or  appointed  by  the  mayor  and  common 
council,  in  such  manner  as  shall  be  provided  by  law."2  This 
proposition  was  amended  so  as  to  include  presidents  and 
boards  of  trustees  of  villages  among  the  elective  officers. 
During  the  debate,  Mr.  Lothrop,  also  of  Detroit,  and  since  then 
minister  to  Russia  under  President  Cleveland,  said  :  "We  are 
perfectly  persuaded  that  the  government  of  all  large  cities 

'Mich.  Laws,  1865,  pp.  99-115. 

*  Convention  Debates,  1867,  vol.  ii,  p.  298. 


349]  IN  MICHIGAN  AND  OHIO.  3  i 

must  take  either  the  one  direction  or  the  other;  there  must  be 
more  power,  and  sufficient  power,  vested  in  the  chief  executive 
and  in  the  legislative  department  of  the  city,  or  else  the  power 
of  popular  government  must  be  taken  away,  and  exercised 
through  boards  provided  for  by  the  legislature.  In  my  judg- 
ment this  last  system  is  utterly  destructive  of  all  popular  re- 
sponsibility and  government  of  cities."1  These  arguments 
prevailed  in  committee  of  the  whole  House  by  a  vote  of 
twenty- nine  against  twenty-five.2 

The  Republican  majority  of  the  convention  evidently  thought 
the  Detroit  Democrats  had  scored  a  point.  For  when  the  re- 
port of  the  committee  of  the  whole  was  taken  up  for  final  action, 
the  fight  was  re-opened  by  Mr.  Miles,  chairman  of  the  stand- 
ing committee  on  cities  and  villages,  who  moved  the  following 
substitute :  "  The  mayor  and  aldermen  of  cities,  and  the 
president  and  board  of  trustees  of  villages,  shall  be  elected ; 
-and  all  other  officers  shall  be  elected  or  appointed  at  such 
time  and  in  such  manner  as  the  legislature  may  direct."3 
This  called  forth  the  best  efforts  of  the  Detroit  men.  Mr. 
Lothrop  said  :  "  If  we  must  be  governed  by  some  other  power, 
I  prefer  not  to  be  governed  by  boards.  I  prefer  to  be 
governed  by  a  proconsul,  to  be  responsible  to  the  legislature. 
I  do  not  want  these  irresponsible  boards,  this  municipal 
government  parceled  out  into  a  little  portion  here,  and  a  little 
portion  there,  and  another  portion  somewhere  else,  each  one 
running  his  office  irrespective  and  independent  of  the  others ; 
though  their  duties  from  the  nature  of  things  are  so  minutely 
and  indirectly  combined,  that  they  must  be  administered  as  a 
whole,  if  administered  effectively  at  all.  .  .  .  My  idea  of  the 
true  democratic  system  of  government  for  a  city,  as  I  have 
already  said,  is  this :  A  mayor,  as  the  chief  executive  officer 
of  the  city,  and  a  common  council  as  the  legislative  power  of 
the  city,  should  be  elected  directly  by  the  people.  They 

Convention  Debates,  1867,  vol.  ii,  p.  299.  *  Ibid.,  vol.  ii,  p.  300. 

3  Ibid.,  vol.  ii,  p.  331. 


32  MUNICIPAL  GOVERNMENT  [350 

should  be  responsible  to  the  people,  and  then  they  should  be 
clothed  with  power  to  make  a  good  government."  z  On  the 
other  side  Mr.  Conger,  afterwards  United  States  Senator,  said : 
"  A  city  is  a  mere  creature  of  the  law ;  it  has  no  power,  no 
authority,  no  right,  no  privilege,  no  place  in  the  world,  except 
as  the  legislature,  carrying  out  the  will  of  the  people,  shall 
give  it  a  place  and  a  standing."  2  The  very  extreme  of  the 
local  autonomy  doctrine  was  set  forth  by  Mr.  Norris,  of 
Washtenaw.  In  his  speech  he  said :  "  What  is  the  principle 
which  we  are  debating,  and  which  is  at  stake  in  this  question  ? 
It  is  the  principle  of  self-government,  the  great  leading, 
distinctive  feature  between  republican  and  tyrannical  govern- 
ment, all  the  world  over.  It  is  the  principle  that  all  the  power 
that  rests  in  this  government  which  is  worth  having  for  one 
moment,  rests  in  the  little  municipal  communities  where  you 
and  I  live,  to  be  exercised  by  us  free  from  all  unnecessary 
control,  free  to  be  used  as  it  best  may."3  The  debate  was 
continued  with  much  animation  and  occasional  ability  for  a 
long  time,  and  at  the  end,  the  convention  reversed  the  action 
of  the  committee  of  the  whole  by  fifty-seven  votes  against 
twenty-six ;  and  thus  refused  to  give  the  constitutional  guar- 
antee asked  by  the  home-rulers.4  In  the  debates  there  was  a 
singular  lack  of  perception  as  to  the  double  functions  of  the 
municipality  —  public  and  local.  Those  in  favor  of  self- 
government  tried  to  force  the  issue  absolutely  between 
despotism  and  centralization  on  the  one  side,  and  liberty 
and  local  autonomy  on  the  other.  The  convention  refused 
to  accept  the  dilemma,  and  adopted  a  half-way  measure,  like 
good  Anglo-Saxons. 

III.  The  Constitutional  Commission  0/1873. 
I  do  not  know  the  causes  which  led  to  the  defeat  of  the  pro- 
posed constitution  of  1867  at  the  polls.     But  there  was  evi- 

1  Convention  Debates,  1867,  vol.  ii,  p.  333.  ''•Ibid.,  vol.  ii,  p.  339. 

•H  Ibid.,  vol.  ii,  p.  343.  Ibid.,  vol.  ii,  p.  360. 


IN  MICHIGAN  AND  OHIO. 


33 


clently  a  strong  demand  for  extensive  constitutional  amend- 
ments ;  for  a  new  effort  was  made  in  that  direction  in  1873. 
This  time  the  Legislature  authorized  the  Governor  to  appoint 
a  Constitutional  Commission  to  consist  of  two  members  from 
each  of  the  nine  congressional  districts,  who  should  prepare  a 
general  revision  of  the  fundamental  law  to  be  submitted  to  the 
next  session  of  the  Legislature  for  approval  before  going  to 
the  people.1  A  resolution  was  offered  at  an  early  session  of 
the  Commission,  prohibiting  the  legislature  from  passing 
local  or  special  laws,  "  incorporating  cities  or  villages,  or 
changing  or  amending  the  charter  of  any  city  or  village."2  As 
reported  by  the  committee  of  the  whole,  the  last  clause  for- 
bidding charter  amendments  was  omitted.3  The  provisions 
with  reference  to  municipalities  finally  adopted  by  the  Com- 
mission but  never  incorporated  in  the  constitution  were  the 
following  : 

(1)  "  Cities  and  villages  shall  hereafter  be  incorporated  only 
under  general  laws,  in  which  their  powers  of-  taxation,  bor- 
rowing money  and  contracting  debts,  shall  be  restricted."4 

(2)  The  limit  of  indebtedness,  including  school  debts,  was 
placed  at  ten  per  cent,  of  the  valuation  on  the  assessment  roll.5 

(3)  "  The  executive  and  legislative  officers  of  cities  and  vil- 
lages shall  be  elected,  and  all  other  officers  shall  be  elected  or 
appointed,  at  such  time  and  in  such  manner  as  the  Legislature 
may  direct."6 

(4)  "  Existing  charters  of  cities  and  villages  may  be  altered 
and  amended."7 

(5)  Municipal  corporations  were  forbidden  to  become  stock- 
holders in  private  enterprises,  or  lend  their  credit  or  make  any 
loan  or  gift  to  them,  or  construct  or  own  any  railroad.8 

1  Mich.  Laws,  1873,  Joint  Resolution  of  April  24. 

*Mich.  Cons.  Commission,  1873,  Journal,  pp.  24-26. 

3  Ibid.,  pp.  35-37.         *  Ibid,,  p.  201,  art.  x,  sec.  14.         *  Ibid.,  sec.  15. 

•  Ibid.,  pp.  201-202,  art.  x,  sec.  16.  '  Ibid.,  sec.  17. 

8  Ibid.,  sec.  I,  pp.  198-199. 


24  MUNICIPAL  GOVERNMENT  [352 

The  legislature  of  1874  changed  the  second  provision  by 
adding — "  unless  authorized  by  a  majority  of  the  electors  re- 
siding within  such  corporation  voting  thereon  as  may  be  pre- 
scribed by  law."1  The  next  section  was  also  changed  to  read 
thus — "  The  judicial,  chief  executive  and  legislative  officers  of 
cities  and  villages  shall  be  elected." 

Although  the  constitution  of  1850  is  still  Michigan's  funda- 
mental law,  these  various  attempts  to  change  it  point  to  the 
increasing  demand  that  the  city  should  be  placed  beyond  a 
doubt  under  the  protection  of  the  constitution  in  some  way  or 
other,  and  at  the  same  time  should  be  held  within  definite  lim- 
itations, chiefly  financial. 

1  Mich.  Laws,  1874,  p.  36. 


CHAPTER  III. 

THE    DOCTRINF.    OF    LOCAL   SELF-GOVERNMENT    IN    MICHIGAN. 

THE  courts  of  Michigan,  under  the  leadership  of  Judges 
Cooley,  Campbell  and  Christiancy,  have  carried  the  idea  of 
local  self-government  as  a  doctrine  of  American  constitutional 
law  farther  than,  perhaps,  any  other  courts  of  this  country. 
This  fact  is  interesting  here,  because  it  has  led  to  important 
results  in  delimiting  a  sphere  of  municipal  home  rule.  It  is 
not  necessary  to  go  into  the  details  of  the  early  development 
of  local  government  in  Michigan,  for  that  has  already  been 
done  quite  completely.1  A  brief  review  of  the  main  stages  of 
development  will  nevertheless  be  helpful. 

I.  Outline  of  the  early  development  of  local  self-government. 

By  the  Ordinance  of  1787,  the  Governor  of  the  Northwest 
Territory  was  authorized  to  divide  the  territory  into  counties 
and  townships  for  administrative  and  executive  purposes,  and 
appoint  the  local  officers.2  Nine  years  later  the  survey  was 
provided  for,  which  formed  the  basis  of  the  present  system 
of  uniform  townships,  six  miles  squared  The  sparseness  of 
population  was  favorable  to  the  appointment  of  most  officers 
by  the  Governor  in  the  early  years  of  the  present  century.  I 
find  no  evidence  of  elective  officers  within  the  territory  of 
Michigan  prior  to  1810,  save  in  Detroit.  And  even  there, 
under  the  charter  of  1806,  the  mayor  was  an  appointee  of  the 

1  Bemis,  Local  Government  in    Mich,  and  the  Northwest,  J.  H.  U.  Studies, 
vol.  i,  no.  5  ;  also,  Howard,  Local  Const.  Hist,  of  the  U.  ^.,pp.  153-156,  426-438. 
1  Journals  of  Congress,  vol.  iv,  pp.  751-754. 
3  U.  S.  Statutes  at  Large,  vol.  i,  pp.  464-469. 

353]  3S 


36  MUNICIPAL  GOVERNMENT  [354 

Governor  and  was  given  an  absolute  veto  over  the  acts  of  the 
elective  council.1  But  in  1810  a  law  was  promulgated  autho- 
rizing the  election  of  five  selectmen  with  very  extensive 
duties  in  each  of  the  districts  of  the  Territory.2  The  laws  of 
Governor  Hull  and  the  Judges,  however,  were  preity  much 
paper  laws  in  those  days,  especially  as  the  war  with  England 
soon  made  a  military  government  a  practical  necessity.  Under 
Governor  Cass'  administration  there  was  a  constant  develop- 
ment of  county  and  township  organization,  but  for  many  years 
the  local  officers  were  appointive.  But  in  1825  Congress 
authorized  the  Governor  and  Legislative  Council  to  define  and 
incorporate  townships  whose  officers  were  to  be  elected. 
County  officers  also  were  to  be  elected,  except  that  judges  and 
clerks  of  courts  of  record,  judges  of  probate,  sheriffs  and  justices 
of  the  peace  had  to  be  appointed.3  Under  this  act  the  deliber- 
ative town-meeting  and  the  "  supervisor  system  "  were  intro- 
duced in  1827.4  By  the  first  state  constitution  the  county 
and  township  judicial  and  peace  officers  became  elective,  but 
the  state  judiciary  continued  to  be  appointive  until  the  second 
constitution  was  adopted  in  1850.  This  early  tendency  to 
make  an  exception  of  judicial  officers  in  favor  of  the  system  of 
appointment,  was  doubtless  responsible  for  the  wording  of  the 
clause  adopted  in  this  constitution  requiring  specifically  the 
election  of  "judicial  officers  of  cities  and  villages."  The  his- 
tory of  this  section  in  the  convention  has  been  told  in  the  pre- 
ceding chapter.5  The  powers  of  the  county  boards  of  super- 
visors were  also  increased  by  this  constitution. 

II.    The   doctrine   of  local   self-government  developed    by   the 
Supreme    Court. 

In   the  year    1853   the  legislature  made  an  innovation  by 
establishing  a  board  of  water  commissioners  for  Detroit,  and 

1  Mich.  Terr.  Laws,  vol.  iv,  pp.  3-6.  J  Ibid.,  vol.  iv,  pp.  96,  97. 

8  U.  S.  Statutes  at  Large,  vol.  iv,  pp.  80,  81. 

*  Mich.  Terr.  Laws,  vol.  ii,  pp.  317-325,  325-329.  5  Supra,  p.  27. 


355]  IN  MICHIGAN  AND  OHIO.  37 

naming  the  first  members  in  the  act  itself.1  The  first  ap- 
pointees were  to  hold  for  one,  two,  three,  four  and  five  years 
respectively,  their  successors  to  be  chosen  by  the  common 
council.  This  act  was  not  tested  in  the  courts.  But  eleven 
years  later  a  law  creating  a  metropolitan  board  of  police 
commissioners,2  although  the  first  members  were  named  in 
the  act,  and  their  successors  were  to  be  appointed  by  the 
Governor  and  Senate,  was  upheld  in  the  case  of  People  vs. 
Mahaney.3  The  effects  of  this  action  on  the  deliberations  of 
the  constitutional  convention  of  1867  have  already  been  noted.4 
The  decision  of  the  court  in  the  case  of  the  police  commissioners 
was  followed  by  the  enactment  of  several  laws  creating  boards 
for  the  city  of  Detroit,  the  first  members  being  named  in  the 
acts,  though  their  successors  were  to  be  appointed  by  the 
corporate  authorities.  In  1867  a  fire  commission  was  ap- 
pointed by  the  legislature,5  and  at  the  session  of  1871  the 
police  law  was  reenacted  and  the  appointments  renewed,6  and 
boards  of  park  commissioners  7  and  public  works  8  were  ap- 
pointed. The  park  board  was  to  consist  of  six  members,  one- 
third  to  retire  each  year  and  their  successors  to  be  appointed 
for  three-year  terms  by  the  council  on  nomination  of  the 

1Mich.  Laws,  1853,  pp.  180-187.  *  Ibid.,  1865,  pp.  99-115. 

3  13  Michigan,  481.  In  this  case  the  question  of  central  appointment  of  local 
officers,  as  affected  by  art.  xv,  sec.  14,  of  the  Constitution  was  not  considered. 
Section  13,  which  required  the  legislature  to  restrict  the  taxing  powers  of  cities, 
and  several  other  provisions  of  the  constitution  in  reference  to  the  forms  of  legisla- 
tion, were  considered.  It  was  also  argued  by  counsel  that  the  act  violated  the 
principal  of  "  no  taxation  without  representation."  This  view  was  not  sustained 
by  the  court,  which  held  that  Detroit  was  represented  both  in  the  Legislature  and 
in  the  election  of  the  Governor.  Later,  in  the  case  of  People  v.  Hurlbut,  24  Mich., 
44,  this  decision  was  cited  by  counsel  for  the  Board  of  Public  Works,  but  Chief 
Justice  Campbell  distinguished  the  cases  on  the  ground  that  the  police  commis- 
sioners were  essentially  state  officers,  while  the  board  of  public  works  were  entirely 
local  in  their  functions. 

*  Supra,  pp.  30-32.  &  Mich.  Laws,  1867,  vol.  ii,  pp.  931-938. 

8  Ibid.,  1871.  vol.  iii,  pp.  230-254. 

1  Ibid.,  1871,  vol.  ii,  pp.  1322-1334.  8  Ibid.,  vol,  iii,  pp.  278-287. 


38  MUNICIPAL  GOVERNMENT  [356 

mayor.  The  board  of  public  works  consisted  of  four  mem- 
bers, two  of  each  political  party,  one  to  retire  every  two 
years,  and  their  successors  to  be  appointed  by  the  city 
authorities.  The  old  boards  of  sewer  commissioners  and 
water  commissioners  were  to  be  superseded  by  this  new 
board,  but  they  refused  to  give  up  their  offices,  and  action 
was  brought  against  them  by  quo  warranto  to  test  the  validity 
of  the  law.1  The  court  decided  that  the  appointment  of  the 
board  of  public  works  for  definite  terms  by  the  central  author- 
ity of  the  state  was  unconstitutional. 

The  opinion  in  this  case  was  very  long,  each  judge  feeling 
compelled  to  speak  for  himself.  The  provision  of  the  consti- 
tution which  came  nearest  to  the  question  at  stake  was  the  one 
requiring  the  election  of  judicial  officers  in  cities,  and  the  elec- 
tion or  appointment  of  other  officers  "  at  such  time  and  in  such 
manner  as  the  Legislature  may  direct."2  The  history  of  this 
section  in  the  convention  of  1850  was  an  important  factor  in 
establishing  the  intention  of  the  framers  with  reference  to  the 
appointment  of  local  officers.  Having  referred  to  the  inevi- 
table inference  that  the  election  of  local  officers  meant  election 
by  the  people  of  the  localities,  Judge  Christiancy,  in  delivering 
the  first  opinion,  went  on  to  say:  "The  inference  that  the 
appointments  referred  to  in  this  provision  were  intended  to  be 
such  only  as  the  legislature  might  authorize  the  local  author- 
ities to  make,  may  not  be  so  palpable  at  first  view,  as  there  is 
no  provision  how  appointments  in  general  shall  be  made ;  and 
all  that  are  authorized  of  a  local  character  are  not  required  to 
be  made  by  the  local  authorities  of  the  district  or  locality  for 
which  the  appointment  is  to  be  made.  But  when  we  recur  to 
the  history  of  the  country,  and  consider  the  nature  of  our  in- 
stitutions, and  of  the  government  provided  for  by  this  consti- 
tution, the  vital  importance  which  in  all  the  states  has  been  so 
long  attached  to  local  municipal  governments  by  the  people 

1  People  v.  Hurlbut,  24  Mich.,  44. 

2  Constitution  of  1850,  art.  xv,  sec.  14. 


357]  IN  MICHIGAN  AND  OHIO.  39 

of  such  localities,  and  their  rights  of  self-government,  as  well 
as  the  general  sentiment  of  hostility  to  everything  in  the  na- 
ture of  control  by  a  distant  central  power  in  the  mere  admin- 
istration of  such  local  affairs,  and  ask  oursefves  the  question, 
whether  it  was  probably  the  intention  of  the  convention  in 
framing,  or  the  people  in  adopting,  the  constitution,  to  vest  in 
the  legislature  the  appointment  of  all  local  officers,  or  to  au- 
thorize them  to  vest  it  elsewhere  than  in  some  of  the  authori- 
ties of  such  municipalities,  .  .  ,  the  conclusion  becomes  very 
strong  that  nothing  of  this  kind  could  have  been  intended  by 
the  provision.  And  this  conviction  becomes  stronger  when  we 
consider  the  fact  that  this  constitution  went  far  in  advance  of 
the  old  one,  in  giving  power  to  the  people  which  had  formerly 
been  exercised  by  the  executive,  and  in  vesting,  or  authorizing 
the  legislature  to  vest,  in  municipal  organizations  a  further 
power  of  local  organization  than  had  before  been  given  them. 
We  cannot,  therefore,  suppose  it  was  intended  to  deprive  cities 
and  villages  of  the  like  benefit  of  the  principle  of  local  self- 
government  enjoyed  by  other  political  divisions  of  the  state." 

But  this  judge  considered  it  proper  for  the  legislature  to 
appoint  persons  to  organize  the  board,  set  it  on  its  feet,  and 
turn  it  over  to  municipal  appointees.  And  for  this  reason  he 
considered  the  act  as  a  whole  valid,  and  favored  judgment  of 
ouster  against  the  hold-over  water  and  sewer  commissioners. 

Chief  Justice  Campbell,  in  his  opinion,  pointed  out  that  the 
decision  in  the  case  of  People  vs.  Mahaney  did  not  affect  the 
question  here  involved,  because  the  police  commissioners  were 
essentially  state  officers,  exercising  state  functions,  while  the 
board  of  public  works  was  a  confessedly  local  and  municipal 
authority.  In  reference  to  the  other  boards  appointed  by  the 
legislature  heretofore,  he  argued  that  the  co-operation  of  the 
municipal  authorities  with  them  without  protest  operated  as  a 
ratification  of  the  legislative  appointments.  But  in  the  present 
case  there  was  no  such  consent.  "  We  are,  therefore,  com- 
pelled to  consider  the  plain  question,  whether  the  state  author- 


40 


MUNICIPAL  GOVERNMENT 


ities  have  the  right  to  assume  unlimited  control  of  all 
municipal  appointments.  Judicial  offices  the  constitution  has 
distinctly  provided  for  as  elective  ;  and  they  are  local  in  their 
action  rather  than  in  their  nature.  But  as  to  other  offices  the 
power  is  plenary,  or  it  does  not  exist  at  all.  It  may  as  well 
include  every  office  as  any  less  than  all.  It  may  put  all  the 
power  in  the  hands  of  one  person,  as  well  as  divide  it  among 
several,  and  it  may  continue  it  for  life  as  well  as  for  a  less 
period."  Referring  to  the  state  constitution,  he  goes  en  to 
say  :  "  We  must  never  forget,  in  studying  its  terms,  that  most 
of  them  had  a  settled  meaning  before  its  adoption.  Instead  of 
being  the  source  of  our  laws  and  liberties,  it  is,  in  the  main, 
no  more  than  a  recognition  and  reenactment  of  an  accepted 
system.  The  rights  preserved  are  ancient  rights,  and  the 
municipal  bodies  recognized  in  it,  and  required  to  be  perpetu- 
ated, were  already  existing,  with  known  elements  and  func- 
tions. They  were  not  towns,  or  counties,  or  cities  or  villages 
in  the  abstract  —  or  municipalities  which  had  lost  all  their  old 
liberties  by  central  usurpation  —  but  American  and  Michigan 
municipalities  of  common-law  origin,  and  having  no  less  than 
common  law  franchises.  So  far  as  any  indication  can  be  found, 
in  the  constitution  of  1850,  that  they  were  to  be  changed  in 
any  substantial  way,  the  change  indicated  is  in  the  direction 
of  increased  freedom  of  local  action,  and  a  decrease  in  the 
power  of  the  state  to  interfere  with  local  management."  The 
Chief  Justice,  after  calling  attention  to  the  fact  that  English 
and  American  boroughs  have  always  had  the  right  to  choose 
their  own  local  officers,  and  dwelling  further  on  the  Michigan 
.constitutional  provisions  guaranteeing  the  local  election  of 
county  and  township  officers,  declared  that  the  constitution 
could  not  have  intended  to  give  the  cities  fewer  rights.  "This 
is  no  mere  political  theory,"  he  says,  "but  appears  in  the  con- 
stitution as  the  foundation  of  all  our  polity.  There  is  no  mid- 
dle ground.  A  city  has  no  constitutional  safeguards  for  its 
people,  or  it  has  the  right  to  have  all  its  officers  appointed  at 


359]  IN  MICHIGAN  AND  OHIO,  4! 

home."  He  did  not  even  agree  that  temporary  appointments 
by  the  legislature  for  purposes  of  organization  were  admissi- 
ble, and  moreover  asserted  that  the  bi-partisan  clause  prescribed 
unconstitutional  tests  of  opinion  for  holding  public  office. 
Hence  the  law  was  void,  and  judgment  of  ouster  should  not  be 
rendered. 

Judge  Cooley  thought  the  bi-partisan  requirement  was  sim- 
ply nugatory,  agreeing  with  Judge  Christiancy  in  this  respect. 
The  important  question  with  him,  as  with  the  others,  was  the 
right  of  self-government  involved  in  the  case.  The  full  power 
of  the  legislature  to  create  the  municipality,  enlarge  or  dimin- 
ish its  powers,  or  abolish  it  altogether,  was  recognized  as  an  ac- 
cepted doctrine  of  constitutional  law.  Judge  Cooley  added, 
"But  such  maxims  of  government  are  very  seldom  true  in 
anything  more  than  a  general  sense;  they  never  are  and  never 
can  be  literally  accepted  in  practice.  Our  constitution  as- 
sumes the  existence  of  counties  and  townships,  and  evidently 
contemplates  that  the  state  shall  continue  to  be  divided  as  it 
has  hitherto  been ;  but  it  nowhere  expressly  provides  that 
every  portion  of  the  state  shall  have  county  or  township  or- 
ganizations. .  .  .If,  therefore,  no  restraints  are  imposed  upon 
legislative  discretion  beyond  those  specifically  stated,  the 
township  and  county  government  of  any  portion  of  the  state 
might  be  abolished,  and  the  people  be  subjected  to  the  rule 
of  commissions  appointed  at  the  capital.  .  .  .  The  doctrine 
that  within  any  general  grant  of  legislative  power  by  the  con- 
stitution there  can  be  found  authority  thus  to  take  from  the 
people  the  management  of  their  local  concerns,  and  the  choice, 
directly  or  indirectly,  of  their  local  officers,  if  practically  as- 
serted, would  be  somewhat  startling  to  our  people,  and  would 
be  likely  to  lead  hereafter  to  a  more  careful  scrutiny  of  the 
charters  of  government  framed  by  them,  lest  some  time,  by  an 
inadvertent  use  of  words,  they  might  be  found  to  have  con- 
ferred upon  some  agency  of  their  own,  the  legal  authority  to 
take  away  their  liberties  altogether."  The  origin  of  local  self- 


42  MUNICIPAL  GOVERNMENT  [360 

government  in  the  American  colonies  is  reviewed,  and  an  elo- 
quent discussion  of  the  meaning  of  constitutional  freedom  is 
presented.  Referring  to  the  motives  of  the  framers  of  our  in- 
stitutions, the  judge  says:  "With  them  it  has  been  an  axiom 
that  our  system  was  one  of  checks  and  balances;  that  each 
department  of  the  government  was  a  check  upon  the  others, 
and  each  grade  of  government  upon  the  rest;  and  they  have 
never  questioned  or  doubted  that  the  corporators  in  each 
municipality  were  exercising  their  franchises  under  the  pro- 
tection of  certain  fundamental  principles  which  no  power  in 
the  state  could  override  or  disregard.  The  state  may  mould 
local  institutions  according  to  its  views  of  policy  or  expedi- 
ency; but  local  government  is  matter  of  absolute  right,  and 
the  state  cannot  take  it  away.  It  would  be  the  baldest  mock- 
ery to  speak  of  the  city  as  possessing  municipal  liberty  where 
the  state  not  only  shaped  its  government,  but  at  discretion 
sent  in  its  own  agents  to  administer  it ;  or  to  call  that  system 
one  of  constitutional  freedom  under  which  it  should  be  equally 
admissible  to  allow  the  people  full  control  in  their  local  affairs, 
or  no  control  at  all."  But  so  far  as  the  present  case  is  con- 
cerned, local  autonomy  is  clearly  enough  recognized  in  the 
constitution.  The  Judge's  words  are :  "  When,  therefore,  we 
seek  to  gather  the  meaning  of  the  constitution  from  '  the  four 
corners  of  the  instrument,'  it  is  impossible  to  conclude  that  the 
appointments  here  prescribed,  in  immediate  connection  with 
election  by  the  local  voters,  and  by  a  convention  intent  on 
localizing  and  popularizing  authority,  were  meant  to  be  made 
at  the  discretion  of  the  central  authority,  in  accordance  with 
an  usage  not  prevalent  since  the  days  of  the  Stuarts,  and  which 
even  then  was  regarded,  both  in  England  and  America,  as 
antagonistic  to  liberty  and  subversive  of  corporate  rights." 
Nevertheless  provisional  appointments  to  put  the  new  system 
in  operation  could  be  made  by  the  legislature,  and  hence  the 
appointees  were  entitled  to  their  offices  for  the  time  being. 
The  fourth  member  of  the  court,  Justice  Graves,  gave  only 


36 1]  IN  MICHIGAN  AND  OHIO.  43 

a  short  opinion,  in  which  he  disputed  the  authority  of  the 
legislature  to  make  even  temporary  appointments,  thus  taking 
a  position  with  the  Chief  Justice  against  the  other  two  Justices, 
and  preventing  a  judgment  of  ouster.  But  the  court  was  unan- 
imous, as  we  have  seen,  in  the  opinion  that  permanent  ap- 
pointments for  strictly  local  offices  could  be  made  only  by  the 
local  authorities.  This  was  the  now  famous  case  of  People  vs. 
Hurlbut,  in  which  the  doctrine  of  an  unwritten  constitution 
was  proclaimed  in  Michigan.  The  legislature  could  grant, 
define  and  restrict  local  privileges;  but  whatever  powers  a 
municipality  might  be  given,  its  right  to  exercise  them 
through  its  own  officers  was  guaranteed  by  a  law  higher  than 
the  written  instrument  adopted  in  1850. 

In  the  case  of  Attorney  General  vs.  Lothrop1  it  was  soon 
after  held  that  the  Detroit  Park  Commissioners  appointed  by 
the  legislature  had  been  in  effect  confirmed  by  the  common 
council,  when  it  accepted  their  plans.  Hence  they  were  enti- 
tled to  hold  their  offices.  Another  case  involving  the  ques- 
tion of  local  acquiescence  in  the  central  appointment  of  officers 
was  that  of  Hubbard  vs.  The  Township  Board  of  Springwells.* 
The  legislature  had  authorized  the  Governor  to  appoint  three 
commissioners  to  take  charge  of  a  certain  highway  within  the 
township,  improve  it,  charge  tolls,  and  require  the  township 
to  issue  bonds  and  levy  taxes  to  pay  the  expenses  of  the  im- 
provement.3 The  township  board  refused  to  issue  the  bonds 
when  called  upon  to  do  so,  and  a  mandamus  was  applied  for 
to  compel  them.  This  the  Supreme  Court  refused  on  the 
grounds  that  the  state  was  prohibited  in  the  constitution  from 
engaging  in  works  of  internal  improvement,  and  the  act  in 
question  violated  the  rights  of  local  self-government.  These 
commissioners  who  were  to  hold  in  perpetuity  and  be  respon- 
sible only  to  the  Governor  could  in  no  sense  be  local  officers. 
But  the  highway  attempted  to  be  put  under  their  authority 
was  already  in  charge  of  local  authorities  provided  for  in  the 

1  24  Mich.,  235.  2  25  Mich.,  153.  'Mich.  Laws,  1871,00.  414. 


'44  MUNICIPAL  GOVERNMENT  [362 

constitution  itself.  The  court  said :  "As  we  held  in  the  case 
of  the  Detroit  board  of  public  works,  the  regulation  of  the 
township  affairs,  legally  concerning  none  but  the  people  of  the 
town,  cannot  be  lawfully  vested  in  any  officers  imposed  upon 
the  township  from  without.  These  commissioners,  not  ap- 
pointed by,  or  responsible  to,  the  township  or  its  people,  are 
empowered  to  assume  exclusive  charge  of  a  town  highway, 
turn  it  into  a  toll-road,  and  raise  money  and  impose  taxes  in 
the  township  to  complete  and  repair  the  work.  .  .  .  The 
result  is  that  a  purely  local  work,  public  in  its  character,  is 
taken  charge  of  and  conducted  at  local  expense,  and  paid  for 
by  local  bonds  and  taxes,  without  giving  any  of  the  local 
authorities  any  function  to  perform,  except  that  of  yielding 
implicit  obedience  to  the  orders  and  requisitions  of  a  commis- 
sion, in  whose  appointment  and  government  the  town  and  its 
people  have  had  no  part  whatever."  No  amount  of  inaction 
-on  the  part  of  the  township  authorities  could  make  the  com- 
missioners local  officers,  because  the  act  provided  that  they 
and  their  successors  should  be  appointed  by  the  Governor  ab- 
solutely; whereas  in  the  case  of  the  Detroit  Park  Commis- 
sioners the  appointive  power  was  vested  ultimately  in  the  city, 
and  hence  by  its  acquiescence  it  could  make  the  legislative 
appointees  its  own. 

But  the  court  was  not  yet  through  with  the  park  commis- 
sion. The  law  of  1871,  under  which  the  commissioners  had 
been  accepted  by  the  city,  conferred  upon  them  purely  prelim- 
inary and  advisory  powers,  the  final  determination  upon  the 
purchase  of  a  park  being  left  to  the  citizens'  meeting.  But 
Detroit  was. too  large  a  city  to  be  conducted  on  the  plan  of 
the  New  England  town,  and  so  two  citizens'  meetings,  called 
to  decide  upon  the  park  question,  broke  up  in  confusion,  with- 
out coming  to  any  agreement.  The  next  legislature,  there- 
fore, abolished  the  citizens'  meeting  in  Detroit,  and  explicitly 
gave  the  park  commissioners  full  powers  to  purchase  a  park, 
and  required  the  common  council  to  issue  bonds  up  to  $300,- 


363]  IN  MICHIGAN  AND  OHIO.  45 

ooo,  on  the  request  of  the  commission.1  This  the  council 
refused  to  do  when  the  time  came,  and  a  mandamus  was  ap- 
plied for  to  compel  them.2  The  application  was  refused  by 
the  court  on  the  ground  that  the  state  had  no  right  to  com- 
pel a  city  to  expend  money  for  its  purely  local  concerns,  and 
the  commissioners  had  not  been  accepted  by  the  city  for  the 
exercise  of  the  powers  conferred  upon  them  by  the  act  of  1873. 
In  delivering  the  opinion  of  the  court,  Judge  Cooley  said: 
"  The  proposition  that  there  rests  in  this  or  any  other  court 
the  authority  to  compel  a  municipal  body  to  contract  debts 
for  local  purposes  against  its  will,  is  one  so  momentous  in  its 
importance,  and  so  pregnant  with  possible  consequences,  that 
we  could  not  fail  to  be  solicitous  when  it  was  presented  that 
its  foundations  should  be  thoroughly  canvassed  and  presented, 
and  that  we  might  have  before  us,  in  passing  upon  it,  all  the 
considerations  that  could  be  urged  in  its  support.  In  this  our 
desire  has  been  gratified  to  the  utmost."  He  then  made  a 
clear  distinction  between  matters  of  general  concern  enforced 
upon  the  localities,  and  things  of  purely  local  interest  in  which 
the  legislature  attempts  to  interfere.  "It  is  as  easy  to  justify 
on  principle,"  he  went  on  to  say,  "  a  law  which  permits  the 
rest  of  the  community  to  dictate  to  an  individual  what  he  shall 
eat,  and  what  he  shall  drink,  and  what  he  shall  wear,  as  to 
show  any  constitutional  basis  for  one  under  which  the  people 
of  other  parts  of  the  state,  through  their  representatives,  dic- 
tate to  the  city  of  Detroit  what  fountains  shall  be  erected  at 
its  expense  for  the  use  of  its  citizens,  or  at  what  cost  it  shall 
purchase,  and  how  it  shall  improve  and  embellish  a  park  or 
boulevard  for  the  recreation  and  enjoyment  of  its  citizens." 
While  he  admitted  that  local  functions  might  be  distributed 
among  the  several  local  authorities  by  the  legislature,  yet 
some  regard  must  be  had  to  the  kind  of  functions  any  particu- 

'Mich.  Laws,  1873,  vol.  ii,  pp.  100,  265. 

2  Board  of  Park  Commissioners  v.  Common  Council  of  Detroit,  28  Mich.,  228. 


46  MUNICIPAL  GOVERNMENT  [-564 

lar  officer  was  chosen  to  perform.  The  new  duties  imposed 
upon  the  park  commission  were  radically  different  from  the  old. 
Concluding  he  said,  "That  government  would  be  a  mockery  of 
republican  institutions,  which  while  leaving  to  the  people  a 
choice  of  officers,  should  afterwards  determine  whether  any 
particular  officer  who  had  been  selected  by  the  people  should 
be  a  legislator  or  a  judge,  a  governor  or  a  policeman." 

The  legislature  of  1873  again  established  a  board  of  public 
works  for  Detroit,  to  be  locally  appointed.1  The  common 
council  refused  to  act  on  the  nominations  of  the  mayor  for  the 
members  of  this  board,  but  was  compelled  to  do  so  by  man- 
damus granted  by  the  court  in  the  case  of  Attorney  General 
vs.  Common  Council  of  Detroit.2  The  objection  to  this  act 
was  based  upon  the  assumption  that  it  essentially  changed  the 
form  of  local  government  which  was  universally  recognized, 
by  which  the  council  possessed  the  legislative  power  of  the 
municipality.  Judge  Cooley  said:  "  I  shall  assent  to  the  posi- 
tion of  the  respondents  that  the  common  council  of  a  city — I 
mean  a  body  commonly  known  by  that  name,  whether  in  any 
particular  charter  so  designated  or  not — is  a  distinctive  and 
inseparable  feature  in  municipal  government  under  our  exist- 
ing institutions,  and  cannot  be  done  away  with.  ...  I  can- 
not find  any  safe  ground  in  constitutional  law  on  which  the 
new  idea  of  parceling  out  the  powers  of  municipal  govern- 
ments among  local  boards,  however  chosen,  can  be  supported 
under  the  provisions  of  constitutions  adopted  when  such  a  sys- 
tem was  unknown,  and  designed  to  guard  and  secure  a  system 
quite  different."  Still  the  main  features  of  the  act  in  question 
were  constitutional,  and  the  powers  given  to  the  board  of  pub- 
lic works  might  be  so  interpreted  as  not  to  encroach  upon  the 
essential  legislative  sphere  of  the  common  council.  Hence 
the  council  was  required  to  act  upon  the  mayor's  nominations, 
and  particular  sections  of  the  law  might  be  tested  afterwards 
when  the  board  attempted  to  exercise  doubtful  powers. 

'Mich.  Laws,  1873,  vol.  iii.p.  175.  229  Mich.,  108. 


365]  IN  MICHIGAN  AND  OHIO.  47 

Judge  Campbell  dissented  from  the  opinion  of  the  court,  on 
the  ground  that  tht  unconstitutional  features  of  the  law  formed 
an  integral  part  of  it. 

A  few  years  later,  at  the  January  term  in  1880,  the  case  of 
Allor  vs.  Wayne  County  Auditors'1  was  decided  by  the  court. 
Allor  was  a  constable  for  one  of  the  wards  of  Detroit,  and  pre- 
sented his  claim  to  the  county  auditors  for  services  in  making 
arrests  of  persons  charged  with  crimes  committed  within  the 
county  but  outside  the  city  of  Detroit,  the  warrants  being  is- 
sued by  justices  of  the  peace  within  the  city.  The  auditors 
declined  to  pass  upon  Allor's  claim,  on  the  ground  that  the 
metropolitan  police  act  of  1871  conferred  upon  the  police  force 
exclusive  power  of  serving  such  processes.2  The  court  held 
that  constables  were  officers  recognized  by  the  constitution, 
essentially  local  peace  officers,  whose  powers  could  not  be 
taken  away  by  legislative  act,  or  conferred  exclusively  upon 
the  metropolitan  police  force,  which  could  be  regarded  only  as 
a  body  of  state  peace  officers  supplementary  to  the  everywhere 
existing  local  peace  officers.  Judge  Campbell  again  laid  down 
the  doctrine  of  local  autonomy.  "  It  is  not,"  said  he,  "and  it 
certainly  cannot  be  claimed,  that  under  our  constitution  there 
can  be  any  such  thing  as  municipal  government  which  is  not 
managed  by  popular  representatives  and  agencies  deriving 
their  authority  from  the  inhabitants.  No  business  which  is  in 
its  nature  municipal  can  be  controlled  by  state  or  any  other 
outside  authorities."  Constables  were  the  only  peace  officers 
chosen  in  Detroit,  and  were  an  indispensable  part  of  all  muni- 
cipal government.  Hence  the  provisions  of  the  law  in  con- 
flict with  this  fact  were  invalid,  and  mandamus  was  granted  to 
compel  the  auditing  of  Allor's  claim  by  the  county  board. 

The  case  of  Torrent  vs.  Muskegon3  was  also  important  in 
the  interpretation  of  the  fundamental  powers  of  a  municipality. 
It  seems  that  the  charter  of  Muskegon  gave  no  power  expli- 
J43  Mich.  ,76.  *  Mich.  Laws,  1871,  pp.  230-254,  sees.  13,  35. 

S47  Mich.,  115. 


48  MUNICIPAL  GOVERNMENT  [366 

citly  to  construct  a  city  hall,  but  the  council  had  proceeded 
to  do  it  nevertheless.  Certain  taxpayers  of  the  city  applied 
for  an  injunction.  This  was  refused  by  the  court,  and  the 
power  to  erect  a  city  hall  was  interpreted  as  being  one  of  the 
powers  essential  in  city  corporations.  The  opinion  of  the 
court  was  again  delivered  by  Judge  Campbell,  who  said:  "If 
cities  were  new  inventions,  it  might  with  some  plausibility  be 
claimed  that  the  terms  of  their  charters,  as  expressed,  must  be 
the  literal  and  precise  limits  of  their  powers.  But  cities  and 
kindred  municipalities  are  the  oldest  of  all  existing  forms  of 
government,  and  every  city  charter  must  be  rationally  con- 
strued as  intended  to  create  a  corporation  which  shall  resem- 
ble in  its  essential  character  the  class  into  which  it  is  intro- 
duced. There  are  many  flourishing  cities  whose  charters  are 
short  and  simple  documents.  Our  verbose  charters,  except  in 
the  limitations  they  impose  upon  municipal  action,  are  not  as 
judiciously  framed  as  they  might  be,  and  create  mischief  by 
their  prolixity.  But  if  we  should  assume  that  there  is  nothing 
left  to  implication,  we  should  find  the  longest  of  them  too  im- 
perfect to  make  city  action  possible."  And  further,  "The 
constitution  of  this  state  .  .  .  contemplates  that  the  Legisla- 
ture shall  create  cities  and  other  municipalities,  with  full  pow- 
ers of  beneficial  legislation.  .  .  .  When  the  Legislature  of  the 
state  prescribes  the  limits  of  financial  action,  it  must  be  as- 
sumed to  permit  all  reasonable  and  proper  expenditures  within 
those  limits." 

By  an  act  of  1885,  the  legislature  attempted  to  establish  a 
bi-partisan  "  Board  of  Commissioners  of  Registration  and 
Election "  for  Detroit.1  This  board  was  to  be  appointed  by 
the  mayor  and  council,  and  was  itself  to  appoint  ward  registers 
and  inspectors,  equally  from  the  two  political  parties  repre- 
sented in  the  council.  The  council  refused  to  consider  the 
mayor's  nominations  for  the  board,  and  the  case  came  before 
the  Supreme  Court  in  an  action  for  mandamus  to  force  the  city 

1  Mich.  Laws,  1885,  p.  281. 


367]  IN  MICHIGAN  AND  OHIO.  49 

fathers  to  pass  upon  the  names  submitted  to  them.1  The  writ 
was  denied  on  three  grounds.  First,  the  requirement  of  equal 
representation  of  the  two  political  parties  created  an  unconsti- 
tutional "test"  for  the  holding  of  public  office.  Second,  such 
important  powers  of  government  as  those  concerning  the  con- 
duct of  elections  must  be  exercised  by  officers  who  "  derive 
their  powers  and  office  either  from  the  people  directly,  or  from 
the  agents  or  representatives  of  the  people,"  and  cannot  be 
subdelegated.  Third,  the  provisions  of  this  act  interfere  with 
the  constitutional  right  of  local  self-government.  Upon  this 
point  it  is  worth  while  to  quote  the  following  passages :  "  It  is 
also  well  settled  that  our  state  polity  recognizes  and  perpetu- 
ates local  government  through  various  classes  of  municipal 
bodies  whose  essential  character  must  be  respected,  as  fixed  by 
usage  and  recognition  when  the  constitution  was  adopted. 
And  any  legislation  for  any  purpose,  which  disregards  any  of 
the  fundamental  and  essential  requisites  of  such  bodies,  has 
always  been  regarded  as  invalid  and  unconstitutional."  And 
further  on :  "  It  has  always  been  held  in  this  state  that  the 
municipalities  which  can  be  created  by  our  Legislature  must 
be  such  in  substantial  character  as  they  have  been  heretofore 
known.  Up  to  this  time,  and  ever  since  elections  were  first 
held  in  Michigan,  they  have  been  not  only  localized  in  some 
municipal  division,  but  regarded  as  municipal  action  and 
supervised  and  managed  by  municipal  officers,  either  directly 
elected  or  else  appointed  by  those  who  have  been  elected. 
Such  a  board  as  this,  which  is  in  no  sense  a  mere  agency  of 
the  city,  is  foreign  to  our  system.  If  it  can  be  created  in  a 
city  it  can  just  as  well  be  created  in  a  county,  or  for  the  State. 
When  the  election  ceases  to  be  a  municipal  procedure,  the 
whole  foundation  of  municipal  government  drops  out.  And  a 
municipality  which  is  not  managed  by  its  own  officers  is  not 
such  a  one  as  our  constitution  recognizes." 

1  Attorney  General  v.  Board  of  Councilmen  of  the  City  of  Detroit,  58  Midi.,  213. 


jO  MUNICIPAL  GOVERNMENT  [368 

I  have  quoted  very  fully  from  this  series  of  cases,  in  order 
to  show  in  the  express  words  of  the  court,  that  the  doctrine 
of  local  self-government  is  something  more  than* a  theory  in 
Michigan.  It  is  fully  recognized  that  the  Legislature  may 
grant,  withhold,  or  take  away  the  corporate  powers  of  cities, 
but  it  cannot  take  away  from  the  people  of  any  locality  the 
fundamental  right  of  managing  their  own  affairs.  That  is,  the 
essentials  of  county  and  township  government  are  guaranteed 
absolutely  to  all  the  people,  and  if  further  privileges  are  given 
to  cities,  they  can  be  exercised  only  by  local  officers.  There 
are  certain  general  functions,  as  police,  which  may  be  exer- 
cised in  a  supplementary  way  by  state  officials,  but  not  to  the 
displacement  of  ordinary  local  officers.1  And  further,  the 
Legislature  cannot  radically  change  the  existing  forms  of  muni- 
cipal government,  as,  for  instance,  by  depriving  the  city  coun- 
cil of  its  essential  position  as  the  municipal  legislative  power. 

1  The  Legislature  of  1895  reorganized  the  Detroit  Board  of  Health,  giving  the 
appointment  of  its  members  into  the  Governor's  hands.  This  act  has  not  yet 
been  passed  upon  by  the  Supreme  Court. 


CHAPTER  IV. 

CONSTITUTIONAL  PROVISIONS  FOR  CITIES  IN  OHIO. 

I.   The  early  development  of  special  legislation. 

BY  the  Constitution  of  1802  no  provision  was  made  for 
municipal  corporations.  But  the  inhabitants  of  counties,  towns 
and  townships  were  guaranteed  the  right  to  elect  their  own 
officers.1  When  we  remember  that  Cincinnati  was  first  incor- 
porated as  a  city  in  1819,  it  becomes  evident  that  the  consti- 
tution-makers of  1802  could  not  have  felt  the  pressure  of  the 
problems  of  city  government  to  any  extent.  It  is  not  surpris- 
ing that  they  were  content  to  leave  the  work  of  municipal  or- 
ganization to  the  legislature.  Still  the  guarantee  of  local  self- 
government  to  "towns"  was  important,  as  in -that  term  were 
included  embryo  city  organizations.  But  the  phenomenal 
growth  of  Ohio's  population  during  the  first  half  of  this  cen- 
tury from  about  50,000  to  almost  2,000,000,  and  the  conse- 
quent development  of  industry,  led  to  the  chartering  of  num- 
berless corporations,  including  of  course  many  municipalities. 
The  custom  of  special  legislation  for  the  organization  of  cor- 
porations was  a  natural  growth,  and  not  being  restricted  by 
constitutional  provisions,  had  become  a  great  evil  by  the  year 
1850.  At  the  session  of  the  General  Assembly  for  1849-50, 
for  instance,  545  local  and  special  acts  were  passed,  73  of 
them  relating  to  towns  and  cities,  78  to  turnpike  roads,  75  to 
plank  roads,  67  to  railway  companies,  and  so  on  through  the 
list  of  the  various  corporate  enterprises.  At  the  next  session 
the  total  number  of  such  acts  was  672,  making  an  octavo  vol- 
ume of  709  pages. 

1  Constitution  of  1802,  art.  vi,  sees,  i  .-ind  3. 
369]  51 


C2  MUNICIPAL  GOVERNMENT  [370 

II.   The  Convention  of  1851  and  its  work. 

The  mere  bulk  of  this  special  legislation  would  have  fur- 
nished an  urgent  reason  for  the  requirement  of  general  incor- 
poration laws.  But  another  force  was  at  work,  of  greater  in- 
fluence on  the  public  opinion  of  the  state.  The  over-develop- 
ment of  corporate  undertakings,  and  the  consequent  losses  to 
the  community  as  a  whole,  were  probably  the  reasons  for  the 
intense  feeling  against  corporations  that  took  possession  of  the 
popular  mind,  and  called  for  the  constitution  of  1851.  No 
better  evidence  of  this  can  be  given  than  the  words  of  a  dele- 
gate to  the  constitutional  convention  in  the  debate  on  the 
subject.  The  committee  of  the  whole  was  discussing  a  section 
reported  by  the  committee  on  the  legislative  department,  pro- 
viding that  "  the  General  Assembly  shall  provide  for  the  crea- 
tion and  government  of  municipal  corporations  by  general  and 
uniform  laws."1  Mr.  Leech  moved  to  add,  "but  no  corporate 
body  shall  be  created,  renewed,  or  extended  by  special  act  of 
the  General  Assembly."  In  support  of  his  motion,  he  said  : 
"  Corporations,  sir,  are  destructive  to  equality,  and  hostile  to 
free  institutions,  and  their  existence  should  not  be  tolerated  in 
a  republican  government.  They  confer  privileges  and  benefits 
on  the  few,  which  are  not  enjoyed  by  the  many.  Every 
special  act  of  incorporation  is  a  grant  of  monopoly — a  charter 
of  privileges  to  a  few  individuals,  which  are  not  conferred  upon 
the  community  at  large.  Such  legislation  is,  consequently, 
utterly  repugnant  to  the  great  republican  doctrine  of  equal 
rights — a  doctrine  that  lies  at  the  basis  of  the  free  institutions 
of  this  country."  Moved  by  this  profound  disgust  with  cor- 
porations, the  convention  made  no  very  careful  distinction  of 
public  and  private  corporations.  The  two  standing  committees 
in  charge  of  this  general  subject  were  the  committee  on  bank- 
ing corporations,  and  the  one  on  "corporations  other  than 
banking."  In  the  debate  on  the  proposition  to  prohibit  special 

1  Convention  Debates,  1850-51,  vol.  i,  p.  284. 


37 1  ]  IN  MICHIGAN  AND  OHIO.  53 

acts  of  incorporation,  the  chairman  of  the  second  of  these  com- 
mittees, in  explaining  his  report,  said  that  "  some  of  the  state 
constitutions  contained  an  exception,  so  far  as  municipal  cor- 
porations were  concerned.  There  was  no  very  definite  conclu- 
sion come  to  on  the  part  of  the  committee,  whether  this 
exception  should  be  named  or  not;  but  they  concluded  how- 
ever, unanimously,  to  make  this  report  without  a  section  of 
that  nature.  They  believed  that  all  the  corporations  of  the 
state  could  be  as  well  regulated  by  general  as  by  special  acts 
of  incorporation — by  some  classification  in  cities — by  the 
number  of  inhabitants,  or  by  some  other  manner  which  might 
be  thought  prudent  by  the  Legislature."1  Another  gentle- 
man argued  in  favor  of  the  proposition  on  the  ground  that  acts 
of  a  general  nature  would  get  much  more  careful  attention  at 
the  hands  of  the  legislature  than  special  acts.2  The  latter  were 
passed  almost  without  interest  save  on  the  part  of  the  member 
from  the  locality  affected.  Several  gentlemen,  on  the  other 
hand,  argued  that  special  legislation  for  cities  could  not  be 
dispensed  with.  It  is  interesting  to  note  that  one  of  the  dele- 
gates, a  man  of  German  birth,  in  advocating  general  laws,  said 
that  he  had  had  some  experience  with  reference  to  general  acts 
for  cities,  and  knew  the  difficulties  in  the  way  were  not  insur- 
mountable.3  It  would  simply  be  necessary  to  put  in  the  law 
general  provisions  to  cover  all  possible  differences  of  local 
needs,  and  leave  it  to  the  individual  cities  to  decide  whether 
or  not  to  take  advantage  of  them.  This  was  introducing  the 
Continental  idea  of  a  general  grant  of  corporate  power,  and 
could  hardly  be  expected  to  appeal  in  its  fullness  to  Ameri- 
cans, who  had  come  to  consider  a  city  charter  as  much  a  law  as 
a  grant.  Yet  the  opinion  of  those  favoring  general  laws  pre- 
vailed, and  the  three  following  sections  were  adopted  by  the 
convention  and  ratified  by  the  people : 

1  Convention  Debates,  1850-51,  vol.  i,  p.  340.  *  Ibid.,  vol.  i,  p.  342. 

*  Ibid.,  vol.  i,  p.  358. 


54  MUNICIPAL  GOVERNMENT  [372 

(1)  "  The  Legislature  shall  pass  no  special  act  conferring 
corporate  powers."1 

(2)  "  It  shall  be  the  duty  of  the  Legislature  to  provide  for 
the  organization  of  cities  and  incorporated  villages  by  general 
laws,  and  to  restrict  their  power  of  taxation,  assessment,  bor- 
rowing money,  contracting  debts,  and  loaning  their  credit,  so 
as  to  prevent  the  abuse  of  such  power."2 

(3)  "All  laws  of  a  general    nature  shall    have  a   uniform 
operation  throughout  the  state."3 

These  provisions  are  still  in  force  although  they  have  been 
peculiarly  flexible  under  the  practice  of  the  General  Assembly 
and  the  interpretations  of  the  Supreme  Court. 

III.   The  Convention  of  1873— 74.. 

After  twenty  years' experience  under  the  constitution  of  185 1, 
a  convention  of  the  people  was  called  to  revise  the  organic  law. 
It  met  and  debated  in  the  years  1873  and  1874;  but  the  con- 
stitution drawn  up  by  it  was  rejected  by  the  people,  and  no 
new  constitution  has  been  adopted  since.  A  study  of  the  con- 
vention debates  of  1873  an<^  l%74  wiN  throw  much  light,  how- 
ever, upon  the  sober  convictions  of  the  people,  always  better 
represented  in  a  constituent  than  in  a  legislative  assembly. 
The  committee  on  municipal  corporations  reported  a  section  as 
follows : 

"  The  General  Assembly  shall,  by  general  laws,  provide  for 
the  organization  and  classification  of  municipal  corporations; 
the  number  of  such  classes  shall  not  exceed  six,  and  the  power 
of  each  class  shall  be  defined  by  general  laws,  so  that  no  such 
corporation  shall  have  any  other  powers  or  be  subject  to  any 
other  restrictions,  than  other  corporations  of  the  same  class. 
The  General  Assembly  shall  restrict  the  powers  of  such  cor- 
porations to  levy  taxes  and  assessments,  borrow  money  and 
contract  debts,  so  as  prevent  the  abuse  of  such  power."4 

1  Constitution,  art.  xiii,  sec.  I.  2  fbid.,&r\..  xiii,  sec.  6. 

3  Ibid.,  art.  ii,  sec.  26.         *  Ohio  Convention  Debates,  1873-74,  vol.  i,  p.  578. 


373]  IN  MICHIGAN  AND  OHIO.  55 

Mr.  Hoadly  of  Cincinnati,  as  chairman  of  the  committee,  led 
off  in  the  debate  with  a  very  interesting  account  of  special 
legislation  in  Ohio  up  to  date.  After  citing  some  of  the  out- 
rageous and  open  violations  of  the  constitutional  limitations, 
he  said  :  "  The  question  is  whether  we  will  permit  the  con- 
tinuance of  such  legislation  or  not ;  and  that,  I  submit,  depends 
upon  whether  the  evils  of  special  legislation  are  such  as  to  re- 
quire us  still  to  deny  special  legislation ;  for  that  nearly  all  of 
these  statutes  are  unconstitutional  and  void,  as  being  special 
legislation,  I  imagine  all  lawyers  would  admit.  It  is  not  classi- 
fication to  single  out  a  city  having  a  particular  population,  or 
a  village  of  5,641,  and  say  that  any  village  having  that  popu- 
lation, as  published  in  that  book,  and  no  more,  shall  have  au- 
thority to  build  head  of  division  and  car  shops-"1  The  exper- 
ience of  the  past,  as  well  as  the  inherent  elements  of  the 
situation,  had  convinced  the  enemies  of  special  legislation  that 
some  form  of  classification  must  be  admitted  for  municipal  leg- 
islation. It  was  quite  generally  agreed  that  peculiar  character- 
istics of  location  would  always  render  it  desirable  to  have 
Cleveland  and  Cincinnati  in  different  classes.  But  to  put  no 
restriction  on  the  legislative  power  of  classification  would  only 
bring  about  a  repetition  of  the  practical  nullification  of  the 
constitution.  Hence  the  committee,  and  with  them  the  major- 
ity of  the  convention,  determined  to  fix  the  maximum  number 
of  classes  at  six,  it  being  generally  supposed  that  each  of  the 
two  leading  cities  of  the  state  would  be  put  in  a  class  by  itself. 
The  section  as  adopted,  in  reality,  though  not  in  form,  defined 
a  special  act  as  one  referring  to  any  less  than  all  of  the  cities 
of  one  class.2  These  provisions  were  not  adopted  till  after  a 
long  debate,  conducted  with  much  ability  on  both  sides. 

1  Ohio  Convention  Debates,  1873-74,  vol.  i,  p.  581.  See  infra,  chapter  on 
special  legislation. 

*  A  similar  provision  was  incorporated  in  the  constitutions  of  South  Dakota  and 
Wyoming,  adopted  in  1889.  The  Kentucky  constitution  of  1892  declares,  in  sec- 
tion 156,  that  "The  cities  and  towns  of  this  Commonwealth,  for  the  purposes  of 


56  MUNICIPAL  GOVERNMENT  [374 

The  official  report  of  the  proceedings  and  debates  of  the  con- 
vention does  not  indicate  the  party  affiliations  of  the  mem- 
bers. It  is  therefore  impossible  to  tell  whether  the  opinions  in 
regard  to  the  policy  of  municipal  legislation  divided  along 
party  lines  as  much  as  they  did  in  the  Michigan  convention  of 
1867.  However  that  may  be,  there  was  manifested  a  strong 
feeling  in  favor  of  local  self-government  in  the  debates.  The 
members  who  favored  general  legislation  put  less  emphasis  on 
this  phase  of  the  problem,  except  in  answer  to  the  attacks  of 
those  who  defended  special  legislation.  The  first  great  speech 
against  the  report  of  the  committee  was  delivered  by  a  gentle- 
man from  Cincinnati1  while  the  convention  was  sitting  at 
Columbus  in  the  summer  of  1873.  His  argument  for  special 
legislation  was  based  on  two  grounds.  First,  the  grant  of  a 
general  borrowing  power  to  cities  and  towns  is  dangerous,  be- 
cause it  gives  the  local  rings  too  much  power.  The  localities 
ought  to  be  compelled  to  come  to  the  legislature  whenever 
they  want  to  borrow  money,  in  order  to  preserve  a  legislative 
control  over  the  municipal  councils.  Second,  the  way  ought 
to  be  left  open  for  the  people  of  any  locality  to  call  on  the 
legislature  for  protection  against  their  local  officers.  It  had 

their  organization  and  government,  shall  be  divided  into  six  classes.  The  organ- 
ization and  powers  of  each  class  shall  be  denned  and  provided  for  by  general 
laws,  so  that  all  municipal  corporations  of  the  same  class  shall  possess  the  same 
powers  and  be  subject  to  the  same  restrictions."  The  limits  of  population  for  the 
six  classes  are  then  definitely  fixed,  and  the  general  assembly  is  required  to  assign 
the  cities  and  towns  to  their  proper  classes  and  change  the  assignment  as  popula- 
tion increases  or  decreases.  These  Kentucky  provisions  form  the  most  elaborate 
attempt  to  prohibit  special  legislation  for  cities  yet  embodied  in  any  state  constitu- 
tion. The  New  York  constitution  of  1894,  while  not  prohibiting  special  legisla- 
tion, defines  the  term  "special  act"  in  so  many  words,  as  any  act  applying  to  any 
lers  than  all  the  cities  of  a  given  class.  The  population  limits  of  the  several  classes 
are  fixed,  the  rank  of  each  city  to  be  determined  by  its  population,  according  to 
the  latest  state  enumeration,  and  all  special  acts  are  subjected  to  the  suspensive 
veto  power  of  the  city  authorities.  They  become  law  in  spite  of  the  local  veto,  if 
passed  a  second  time  by  the  legislature. 

'  Mr.  John  W.  Herron,  Debates  of  the  Convention,  vol.  i,  pp.  590-592. 


375]  IN  MICHIGAN  AND  OHIO.  57 

been  necessary,  for  instance,  in  the  case  of  Cincinnati  for  the 
legislature  to  create  a  second  chamber  in  the  council  to  pro- 
tect the  city  from  the  ring.  Referring  to  the  remarks  of  Mr. 
Hoadly  already  quoted,  the  gentleman  went  on  to  say : 
"  Those  laws,  he  said,  every  lawyer  would  regard  as  unconsti- 
tutional, and  yet  so  completely  were  they  in  accordance  with 
the  wishes  of  the  people,  so  necessary  were  they  to  the  inter- 
ests of  those  corporations,  that  but  in  one  single  instance  was 
there  found  a  citizen  ready  to  go  into  the  Supreme  Court,  and 
ask  to  have  those  laws  declared  unconstitutional.  In  one  case, 
where  it  was  undertaken  to  annex  the  village  of  Clifton  to  the 
city  of  Cincinnati,  where  the  wealthy  men  of  that  suburb  found 
that  their  taxes  would  be  increased  by  annexation,  they  did 
employ  my  friend  to  apply  to  the  Supreme  Court,  and  he  suc- 
ceded  in  having  that  law  declared  unconstitutional,  as  being  a 
case  of  special  legislation.1  .  .  .  That  is  the  only  case  within 
my  recollection  where  the  people  have  not  been  so  thoroughly 
satisfied  as  to  the  correctness  of  the  legislation,  that  a  single 
one  of  them  has  ever  attempted  to  have  them  set  aside  or  de- 
clared illegal.  Now,  are  we  going  to  place  a  strait-jacket 
around  every  city  and  municipal  corporation  in  this  state? 
Are  we  going  to  say  that  every  rule  which  we  are  applying  to 
Cincinnati  shall  apply  to  Cleveland,  if  it  has  the  same  popu- 
lation, and  that  we  shall  fence  them  around  by  an  iron  barrier 
beyond  which  they  shall  not  go  ?  Shall  we  say  that  they  are 
finished,  that  we  can  provide  for  all  future  time  for  all  cities 
alike,  and  that  they  are  all  to  be  covered  by  one  universal 
rule  ?  I  say  you  cannot  do  it ;  and  I  believe  that  system  of 
tying  up,  this  system  of  binding  around  every  individual, 
every  municipal  corporation,  has  done  more  to  retard  the  pro- 
gress of  Ohio  than  all  the  bad  legislation  that  has  ever  been 
passed  by  the  state.  Why,  sir,  when  you  have  children,  you 
are  willing  to  trust  them  sometimes  to  spend  money ;  you  are 

1  State  v.  Cincinnati,  20  Ohio  St.,  18. 


58  MUNICIPAL  GOVERNMENT  [376 

willing  that  they  should  learn  by  experience  whether  they 
have  proper  judgment  in  the  spending  of  money  or  not.  Why 
will  you  not  leave  your  municipal  corporations,  which  are  an 
aggregate  of  individuals,  to  some  judgment,  to  the  exercise  of 
some  discretion  in  the  responsibility  of  spending  money,  as  the 
people  of  those  corporations  may  prefer  ?  Pass  your  general 
laws  regulating  the  manner  in  which  they  shall  be  governed, 
but  then  leave  your  legislature  with  certain  powers,  either  to 
enlarge  or  diminish,  to  increase  the  facilities  or  to  take  them 
away,  as  the  circumstances  of  each  case  mny  require." 

In  brief,  the  gentleman's  proposition  was  this :  The  people 
of  the  localities  must  be  granted  a  large  degree  of  self-govern- 
ment, but  the  right  of  central  legislative  control  must  be  re- 
served in  order  to  keep  local  financial  undertakings  within 
proper  limits  and  to  protect  the  people  of  the  localities  from 
the  power  of  rings. 

The  second  important  argument  against  the  attempt  to  pro- 
hibit special  legislation  for  cities  was  delivered  by  another 
delegate  from  Cincinnati,1  and  president  of  the  convention, 
when  the  subject  was  again  taken  up  in  February,  1874.  In 
the  beginning  of  his  speech  he  said :  "  The  convention  of 
1851  attempted  an  impossibility.  It  sought  to  enforce  uni- 
formity upon  the  cities  and  villages  of  Ohio,  by  the  passage  of 
this  Thirteenth  Article  on  corporations  .  .  .  What  I  object  to 
in  the  existing  constitution,  and  in  the  proposition  now  before 
us,  is  this  idea  of  governing  cities  and  villages  upon  the  same 
principle  that  you  regulate  banks,  railroads,  cotton  factories 
and  private  corporations  of  every  sort ;  thus  assuming  to  place 
the  people  of  our  cities  or  towns  upon  the  same  footing  in  re- 
spect to  the  great  functions  of  municipal  government,  upon 
which  you  administer  the  dollar  and-cent  operations  of  private 
corporations,  created  for  mere  trade  and  commerce." 

After  a  warm  eulogy  upon  the  local  self-government  that 

'Mr.  Rufus  King,  Debates  of  the  Convention,  vol.  ii,  pt.  2,  pp.  1299-1303. 


377]  IN  MICHIGAN  AND  OHIO.  59 

obtained  in  Ohio  cities  prior  to  the  constitution  of  1851,  the 
delegate  said:  "  Of  all  this  independence,  which  the  people  of 
Ohio  were  thus  enjoying,  the  constitution  of  1851  deprived  us. 
It  repealed  at  one  stroke,  and,  so  far  as  I  can  discover,  without 
debate  or  murmur,  the  independent  charters  under  which  all 
our  cities  and  towns  were  enjoying  each  their  own  little 
system  of  organization  and  management.  Some  gentleman, 
imbued  with  this  central  idea  of  French  politics — who  he  was 
I  do  not  know,  for  the  record  does  not  tell — put  this  thing  in 
their  bonnets,  and  it  seems  to  have  buzzed  about  like  a  bumble 
bee,  till  it  got  into  the  heads  of  everybody,  and  was  passed 
without  a  dissenting  voice.  It  undertook  to  amend  every 
charter  of  every  city  and  town  in  Ohio,  and  to  compel  the 
legislature  to  put  them  all  under  general  and  uniform  laws. 

"But,  sir,  it  has  proved  a  total  failure.  .  .  .  The  people  of 
the  state,  the  legislature,  and  the  courts,  have  virtually  re- 
pealed it  long  since,  by  evasions  directly  in  violation  of  its 
letter  and  spirit  It  could  not  be  kept.  .  .  .  The  only  object 
which  it  was  to  subserve  was  to  get  rid  of  special  legislation  -r 
but  it  has  rather  served  to  multiply  such  legislation,  and  has 
introduced  confusion  far  worse  than  any  that  can  be  found 
under  the  legislation  prior  to  1851.  Legislation  has  become 
so  special  and  intricate,  under  these  '  general  laws,'  that  it  is 
now  almost  impossible  for  any  man,  except  he  be  a  lawyer, 
and  it  is  difficult  even  for  many  of  them,  to  tell  what  the  law 
is  with  regard  to  many  points  in  municipal  government.  .  .  . 
I  tried  the  other  day  to  find  a  single  and  very  simple  point  in 
the  municipal  law  regulating  the  city  of  Cincinnati,  and,  after 
much  effort,  have  not  found  it  yet.  It  is  said  there  was  once 
a  monarch,  named  Procrustes,  who,  by  a  general  law,  decreed 
every  man  in  his  kingdom  to  be  of  the  same  size,  and  he  put 
them  in  a  uniform  machine  which  cut  off  their  heads  or  their 
feet,  just  as  circumstances  required.  It  seems  very  much  like 
the  same  thing  when  we  require  municipal  governments  in 
Ohio  to  be  all  of  one  and  the  same  organization.  It  has 


6O  MUNICIPAL  GOVERNMENT  [378 

proved  a  failure.  The  Legislature  and  the  Supreme  Court 
have  disregarded  it,  and  the  people  of  Ohio  are  living  in  plain 
violation  of  their  constitution.  They  have  been  compelled  to 
violate  their  constitution.  They  cannot  live  under  it;  and  the 
proposition  now  brought  forward  by  the  committee  as  a  sub- 
stitute is,  in  my  judgment,  calculated  to  make  the  evil  worse 
than  it  already  is.  For,  sir,  while  the  Legislature  and  the 
courts  have  driven  a  coach  and  four  through  this  uniformity 
clause  in  the  present  constitution,  by  a  system  of  classification 
and  circumlocution  which  has  become  the  laughing-stock  of 
the  people  of  the  state,  it  is  now  proposed  to  amend  by  divid- 
ing all  the  cities,  towns  and  villages  in  Ohio  into  six  classes, 
and  to  hedge  in  each  of  these  classes  by  a  cast-iron  provision 
of  the  Procrustean  sort,  so  terrible  as  to  defy  opposition." 

A  large  part  of  this  speech  was  devoted  to  the  inevitable 
loss  of  local  autonomy  under  a  system  of  only  general  laws 
for  cities  in  classes.  The  speaker  laid  especial  emphasis  on 
the  trouble  that  each  city  would  have  to  incur  in  defending  its 
liberties  before  the  Legislature  whenever  any  city  of  the  same 
class  asked  for  a  change  in  the  general  law.  One  paragraph 
is  worth  quoting:  "The  objection  to  the  whole  system  is  this, 
that  it  compels  the  different  cities  which  must  thus  be  grouped 
together  into  one  class,  to  be  perpetually  interfering  with  each 
other,  engaging  in  a  constant,  internecine  war  with  each  other, 
with  regard  to  all  of  the  small  details  of  their  home  govern- 
ment. It  necessarily  puts  them  at  war  with  each  other  upon 
every  diversity  which  either  or  any  of  the  class  may  seek  from 
the  Legislature  in  organization,  power,  or  liabilities." 

It  is  needless  to  follow  the  debate  further  in  detail.  The 
supporters  of  the  proposition  reported  by  the  committee  an- 
swered the  objection  that  self-government  and  the  demands  of 
peculiar  local  conditions  would  be  overthrown,  by  saying  that 
general  laws  could  be  passed  regulating  the  forms  of  city  or- 
ganization, while  each  particular  city  could  be  left  free  to  ex- 
ercise at  will  any  privilege  which  the  legislature  should  feel 


379] 


IN  MICHIGAN  AND  OHIO. 


justified  in  granting  to  any  city.  It  was  evident  to  all  that 
under  general  laws  it  would  be  impossible  to  provide  for  all 
the  needs  of  all  the  localities  on  the  basis  of  a  detailed  enum- 
eration. But  the  majority  of  the  convention  desired  to  get  rid 
of  special  legislation  by  all  means,  and  so  the  section  was 
passed  as  reported  by  the  committee,  leaving  the  problem  of 
local  autonomy  under  general  laws  to  be  solved  by  the  Legis- 
lature. 

Some  other  provisions  of  importance  were  adopted  by  the 
convention.  Municipal  corporations  were  forbidden  to  loan 
their  credit,  and  the  limit  of  indebtedness  was  fixed.  Special 
assessments  could  not  be  made  requiring  a  payment  of  more 
than  ten  per  cent,  of  the  taxable  valuation  of  property  in  any 
one  year,  nor  more  than  fifty  per  cent,  of  the  highest  taxable 
valuation  in  any  period  of  ten  years.  These  propositions  also 
received  their  share  of  consideration  and  discussion.  But 
although  the  debates  of  the  convention  furnished  an  important 
contribution  to  the  study  of  municipal  government,1  they  had 
no  marked  effect  on  the  actual  course  of  legislation,  as  the 
proposed  constitution  was  not  ratified  at  the  polls. 

The  complete  failure  of  the  constitution  of  1851  to  do  away 
with  special  legislation  may  have  one  of  two  effects.  It  may 
ultimately  convince  the  people  of  Ohio  that  special  laws  for 
different  cities  are  necessary,  and  any  attempt  to  do  away  with 
them  must  end  in  failure.  On  the  other  hand  the  opponents  of 
special  legislation  may  be  so  much  strengthened  in  their  posi- 
tion that  they  will  be  willing,  in  practice  as  well  as  in  theory, 
to  modify  the  doctrine  of  enumerated  powers,  and  make  a  new 
effort  to  compel  the  cities  to  accept  a  uniform  municipal  or- 
ganization, while  leaving  them  a  large  degree  of  freedom  for 
meeting  local  emergencies  in  the  exercise  and  direction  of 
their  administrative  functions.  It  is  not  unlikely,  however,  if 
we  are  to  judge  from  the  opinions  already  held  in  the  conven- 

1  See  Ohio  Convention  Debates,  1873-1874,  vol.  i,  pp.  578-595,  vol.  ii,  pt.  2, 
pp.  1288-1441. 


62  MUNICIPAL  GOVERNMENT  [380 

tion  of  1873  and  1874,  that  each  side  will  continue  to  become 
more  convinced  of  the  correctness  of  its  own  position  for  a 
good  while  to  come.1  In  what  condition  such  a  division  of 
sentiment  leaves  the  laws  of  the  state,  we  shall  see  more  fully 
in  the  following  chapter. 

1  See  Hon.  E.  J.  Blandin's  paper  on  Uniform  Organization  for  Cities  in  Ohio, 
Proceedings  of  the  Minneapolis  and  Cleveland  Conferences  for  Good  City  Gov- 
ernment, pp.  454-463. 


CHAPTER  V. 

MUNICIPAL  LEGISLATION  IN  OHIO    UNDER  THE  CONSTITUTIONAL 
LIMITATIONS  OF   1851. 

I.   The  general  laws  of  1852  and  1853. 

BY  the  constitution  adopted  in  1851  the  General  Assembly 
of  Ohio  was  forbidden  to  pass  any  special  act  conferring  cor- 
porate powers,1  and  was  required  to  provide  for  the  organiza- 
tion of  cities  and  incorporated  villages  by  general  laws.2  Ac- 
cordingly, on  May  3,  1852,  a  general  municipal  corporations 
act  was  passed,  the  first  of  its  kind  in  the  United  States.3  By 
the  first  section  of  this  act,  all  special  charters  then  in  force 
were  repealed,  and  all  the  municipal  corporations  of  the  State 
were  brought  under  the  general  law. 

After  establishing  this  method  of  forming  new  corporations, 
this  act  enumerated  in  detail  through  twenty  sections  the 
powers  of  all  the  municipalities  excepting  special  road 
districts.  The  powers  included  the  authority  to  establish 
water  works  and  cemeteries ;  to  lay  out,  open  and  im- 
prove streets,  public  grounds,  wharves  and  market  places ;  to 
construct  sewers;  to  levy  special  assessments  for  street  light- 
ing and  improvement ;  to  make  by-laws  and  ordinances,  not  in- 
consistent with  state  laws,  to  carry  into  effect  the  powers 

1  Art.  xiii,  sec.  I.  *  Ibid.,  sec.  6. 

s  Ohio  Laws,  50  v.  223-259  (vol.  1,  pp.  223-259).  The  Indiana  Constitution 
of  1851,  art.  xi,  sec.  13,  had  forbidden  special  acts  of  incorporation.  But  sec.  4  of 
the  schedule  provided  that  special  municipal  charters  should  continue  in  force 
until  modified  or  repealed  by  the  general  assembly.  The  Indiana  law  of  June 
18,  1852  (Ind.  Laws,  1852,  vol.  ii,  pp.  203-221),  was  not  made  to  apply,  there- 
fore, to  cities  already  incorporated,  unless  they  chose  to  come  under  its  provisions. 

63 


64  MUNICIPAL  GOVERNMENT  [382 

granted  ;  and  a  long  list  of  police  powers.  A  general  clause 
granted  the  authority  to  pass  such  ordinances  "  as  to  them 
shall  seem  necessary  to  provide  for  the  safety,  preserve  the 
health,  promote  the  prosperity,  and  improve  the  morals,  order, 
comfort  and  convenience  of  such  corporations  and  the  inhabi- 
tants thereof." 

In  the  next  division  the  classification  of  municipal  corpora- 
tions was  provided.  Cities  of  more  than  20,000  population 
were  to  constitute  the  first  class,  and  cities  from  5,000  to 
20,000,  the  second  class.  Other  municipal  corporations  were 
classed  as  incorporated  villages,  and  incorporated  villages  for 
special  purposes,  or  special  road  districts.  In  the  year  follow- 
ing each  Federal  census,  it  was  made  the  duty  of  the  Gover- 
nor, Auditor  and  Secretary  of  State  to  ascertain  those  cities 
and  villages  entitled  by  increase  of  population  to  be  advanced 
to  the  next  higher  class.  After  the  list  had  been  published, 
the  councils  of  the  municipalities  affected  were  required  to 
take  the  necessary  steps  for  reorganization  in  the  new  class. 

The  corporate  power  of  villages  was  vested  in  a  mayor,  a 
recorder  and  five  trustees,  who  together  formed  the  village 
council,  and  were  given  the  power  of  further  organization  of 
village  offices.  In  cities,  there  were  to  be  a  mayor,  and  a 
city  council  composed  of  two  trustees  elected  from  each  ward. 
Other  officers  were  named,  the  list  being  somewhat  different 
for  the  two  classes  of  cities.  The  city  council  was  required  to 
appoint,  or  provide  for  the  election  of  all  officers,  whether 
mentioned  in  the  act  or  afterwards  established  by  ordinance. 
All  cities  might  establish  a  police  force,  fire  companies  and  a 
board  of  health.  In  cities  of  the  first  class  the  "  board  system  " 
was  introduced.  There  were  to  be  elected  three  water-works 
trustees,  three  city  commissioners,  and  three  infirmary  direc- 
tors. There  might  also  be  established  a  board  of  directors  for 
the  house  of  refuge.  Together  with  the  mayor  and  civil  engi- 
neer, the  city  commissioners  were  to  form  a  board  of  city  im- 
provements, under  the  direction  of  the  council. 


•383]  IN  MICHIGAN  AND  OHIO.  65 

Detailed  limitations  were  placed  on  the  taxing  and  the  bor- 
rowing powers.  No  loans  could  be  made  except  in  anticipa- 
tion of  yearly  revenues.  These  loans  could  not  exceed  the 
following  amounts: — for  special  road  districts,  $  1,000;  for 
villages,  $5,000;  for  cities  of  the  second  class,  550,000;  for 
cities  of  the  first  class,  $  100,000.  In  the  same  way,  the  tax 
limits  for  general  and  incidental  expenses  were  fixed  for  the 
four  grades  of  municipalities  at  two  and  a  half,  three,  three 
and  five  mills  on  the  dollar  of  valuation  respectively.1  The 
collection  of  taxes  was  to  be  made  by  the  county  treasurer, 
after  the  rate  had  been  fixed  by  the  municipal  authorities  and 
reported  to  the  county  auditor. 

Such  was  Ohio's  first  general  law  for  cities  and  villages.  In 
the  next  year,  1853,  a  supplementary  and  amendatory  act  was 
passed,2  containing  about  a  third  as  many  sections  as  the  law 
of  the  previous  year.  One  provision  of  importance  was  that 
which  gave  city  councils  full  power  to  fix  and  alter  the  ward 
boundaries.  Aside  from  this  the  two  chief  points  of  this  act 
were  connected  with  the  advancement  from  class  to  class,  and 
the  financial  powers  of  municipal  corporations.  It  was  pro- 
vided that  the  consent  of  the  council  should  be  required  be- 
fore any  city  or  village  was  advanced  to  the  next  higher  grade, 
and  upon  petition  of  the  council  with  evidence  of  the  required 
population  a  city  could  be  advanced  between  decennial  periods. 
A  tax  of  four  mills  on  the  dollar  was  allowed  in  cities  of  the 

1  For  cities,  special  tax  levies  were  permitted  as  follows :  Cities  of  the  second 
class,  police  fund  and  fire  department  fund,  each  one  mill ;  cities  of  the  first  class, 
police  fund,  two  mills;  fire  department  fund,  one  mill ;  house  of  refuge,  house  of 
•correction,  workhouse,  and  city  prison,  one  and  a  half  mills  ;  water  works,  one- 
half  mill;  schools,  two  mills;  city  infirmary  and  poor  relief,  two  mills.  An  extra 
one-half  mill  tax  was  allowed  to  all  municipal  corporations  for  a  sinking  fund. 
Also  all  municipal  councils  were  required  to  levy  an  interest  fund  tax,  not  exceed- 
ing two  mills  on  the  dollar,  to  pay  interest  on  all  outstanding  debts.  It  was  further 
permitted  to  levy  a  tax  on  dogs  and  other  animals  not  on  the  state  and  county  tax 
list. 

»O.  L.,  51  v.,  360-374. 


6(5  MUNICIPAL  GOVERNMENT  [384 

second  class  for  school  purposes.  For  paying  off  existing  in- 
debtedness, villages  could  levy  a  seven-mill  tax,  while  the 
limit  of  the  required  interest  fund  tax  was  raised  from  two  to 
six  mills.  Municipal  corporations  were  given  the  right  to 
refund  their  debts,  where  they  could  not  be  paid  under  the 
tax  limitations.  Cities  of  the  first  class,  not  already  having 
water  works,  were  authorized  to  borrow  $500,000  for  that 
purpose,  with  the  approval  of  the  electors,  the  details  of  the 
loan  to  be  determined  by  the  council.  The  council  of  any  city 
of  the  first  class  was  also  permitted  to  borrow  $500,000  for 
the  purchase  of  lands  for  public  wharves,  squares,  parks  or 
market  places,  on  conditions  fixed  in  the  law  with  a  good  deal 
of  stringency.  The  borrowing  power  was  granted  to  the 
councils  of  all  municipal  corporations  for  the  purchase  of 
school  grounds  and  the  erection  of  school  buildings. 

These  two  acts  of  1852  and  1853  formed  the  general  foun- 
dation for  the  system  of  municipal  legislation  that  was  to  grow 
up  under  the  constitutional  prohibition  of  special  legislation. 
It  is  significant  that  by  the  first  law  the  idea  of  classification 
by  population  was  introduced,  while  by  the  second,  advance- 
ment from  one  class  to  another  with  increase  of  population 
was  made  optional  with  each  locality.  From  this  resulted  the 
present  confusion  of  Ohio  classification.  By  the  census  of 
1850,  only  Cincinnati  had  more  than  20,000  population,  but  by 
1853,  Cleveland  was  ready  to  be  assigned  to  the  first  class  of 
cities.  Since  then  only  one  city,  Toledo,  has  availed  itself  of 
the  privilege  of  promotion  from  the  second  to  the  first  class, 
although  by  the  census  of  1890  there  were  ten  cities  in  Ohio 
with  more  than  20,000  population  each.  While  on  this  side 
we  see  the  reason  for  Ohio's  intricate  classification,  if  we  con- 
sider the  taxing  and  borrowing  regulations  of  these  first  gen- 
eral laws,  it  becomes  plain  that  new  legislation  would  be 
needed  if  the  cities  were  to  develop  freely.  The  limitations  of 
the  tax  levies,  and  the  general  denial  of  the  borrowing  power, 
led  inevitably  to  a  great  mass  of  special  legislation  in  the  years 
following. 


-585]  IN  MICHIGAN  AND  OHIO.  67 

In  regard  to  the  provision  of  the  law  granting  the  right  of 
redistricting  each  city  to  that  city's  council,  we  may  quote 
from  the  convention  debates  of  1873,  where  a  delegate  illus- 
trated the  demand  for  special  legislation  from  the  history  of 
his  own  city.  He  said :  "  We  had  in  Cincinnati  what  was  a 
complete  rotten  borough  system.  One  ward  had  a  voting  po- 
pulation of  200 ;  another  had  a  voting  population  of  2,500. 
Less  than  one-third  of  the  city  controlled  the  entire  election; 
less  than  one-third  of  the  population  elected  a  majority  of  the 
members  of  the  Council  and  Board  of  Aldermen.  Your  gen- 
eral law  provided  how  the  districting  of  the  city  should  be 
done.  It  was  left  to  the  city  council,  the  very  body  elected 
under  this  system,  and  year  after  year  an  appeal  was  made  to 
redistrict  the  city  into  wards  of  nearly  equal  population.  It 
was  found  impossible  to  obtain  it  from  them ;  and  this  rotten 
borough  system  continued  year  after  year,  until,  as  a  last  re- 
sort, the  people  appealed  to  the  legislature  for  relief,  and  what 
the  gentleman  calls  a  special  act  was  passed,  directing  the  re- 
districting  of  the  city  in  a  special  way."1 

II.  Growth  of  special  legislation  prior  to  the  municipal 
code  of  1869. 

The  first  step  towards  introducing  special  acts  into  the  forms 
of  the  general  law  took  the  form  of  acts  referring  to  all  cities 
with  more  or  less  than  a  given  population,  thus  bringing  a 
special  population  classification  within  the  general  classification 
of  the  original  statutes.  The  first  example  of  this  kind  was 
the  law  of  April  5,  1856,  which  applied  to  cities  of  the  first 
class  having  less  than  80,000  population  by  the  last  federal 
census,  or  any  succeeding  census.2  This  was  an  important 
measure,  changing  the  organization  of  Cleveland  in  quite  a 
radical  manner.  Another  act  of  the  same  year  made  a  special 
tax  limit  for  cities  of  more  than  100,000  inhabitants  by  the  last 

1  Convention  Debates  of  1873-74,  vol.  i,  p.  591. 
*  O.  L.,  53  v.  57-59. 


68  MUNICIPAL  GOVERNMENT  [386 

federal  census.1  A  law  of  1859  conferred  powers  upon  the 
Cleveland  council,  being  addressed  to  every  city  of  the  first 
class  then  having  less  than  80,000  and  more  than  35,000  popu- 
lation." Soon  afterwards,  by  an  avowedly  local  and  special 
act,  the  Cleveland  board  of  education  was  organized,  and 
given  various  powers  and  duties  which  were  partly  dependent 
on  the  city  council  for  approval,  direction  or  completion.*  The 
Supreme  Court  decided  later  that  boards  of  education  and 
school  districts  were  not  corporate  bodies  within  the  meaning 
of  the  constitution.4  But  those  parts  of  this  law  conferring 
powers  of  oversight  upon  the  city  council  were  certainly  in  vio- 
lation of  the  constitution.  An  act  of  1861  introduced  import- 
ant changes  into  the  city  government  of  Cleveland,  applying 
only  to  such  cities  of  the  first  class  having  less  than  80,000  in- 
habitants as  should  be  of  that  class  when  the  law  went  into 
effect,  which  was  to  be  immediately  after  its  passage.5  It  is 
important  to  notice  that  this  law,  though  general  in  form,  was 
so  drawn  that  it  could  never  apply  to  more  than  one  city, 
Cleveland.  Two  years  later  cities  of  the  second  class  which 
had  more  than  13,000  population  at  the  last  census  were  spec- 
ially empowered  to  construct  sewers.6  Three  cities,  Columbus, 
Dayton,  and  Toledo,  fell  within  this  category. 

The  tide  of  special  legislation  had  now  set  in  with  much 
force.  I  have  given  only  a  few  examples  to  show  the  various 
forms  it  was  beginning  to  assume.  In  1863,  eleven  acts  were 
passed  referring  to  municipal  corporations,  eight  of  which  ap- 
plied to  less  than  all  of  one  class.  Ohio's  future  descriptive 
ingenuity  was  but  dimly  foreshadowed  in  an  act  fixing  the 
tax  limit  in  cities  of  the  second  class  with  a  population  of 
not  less  than  13,000  at  the  last  federal  census,  and  having  an 
amount  of  taxable  property  on  the  grand  duplicate  not  exceed- 

1  O.  L.,  53v.  214.  *  Ibid.,  56  v.  127. 

1  Ibid.,  56  v.  281.  *  State  v.  Powers,  38  Ohio  St.,  54. 

5  O.  L.,  58  v.  25.  «  Ibid.,  60  v.  6. 


387]  IN  MICHIGAN  AND  OHIO.  £9 

ing  six  million  dollars.1  During  the  years  following  1860,  a 
good  many  special  acts  were  passed,  conferring  various  kinds 
of  powers  on  sundry  cities  and  villages ;  as  for  instance,  au- 
thorizing the  city  of  Hamilton  to  borrow  money,2  the  council 
of  Greenfield  to  appropriate  certain  moneys,3  the  city  council  of 
Zanesville  to  construct  a  market  house,4  the  city  council  of 
Mansfield  to  sell  or  lease  certain  lands,5  the  city  of  Tiffin  to 
levy  a  tax,6  to  change  the  boundaries  of  Zanesville,7  to  legalize 
the  municipal  corporation  known  as  the  town  of  Massillon.8 
This  kind  of  legislation  became  much  more  common  in  later 
years,  until  it  was  partially  checked  by  the  decisions  of  the 
Supreme  Court. 

In  1864,  for  purposes  of  tax  limitation,  villages  were  divided 
into  those  with  more  and  those  with  less  than  2,500  popula- 
tion.9 The  confusing  effect  of  the  option  clause  of  the  act 
of  1853  with  reference  to  advancement  began  to  be  ap- 
parent when  laws  were  enacted  for  cities  of  the  second  class, 
having  less  than  20,000  population.10  There  would  have  been 
no  second  class  cities  with  a  greater  population  than  20,000, 
except  for  the  fact  that  any  city,  once  in  a  class,  might  choose 
to  stay  there  always.  Dayton,  by  the  census  of  1860,  was  en- 
titled to  become  a  city  of  the  first  class,  but  had  not  chosen  to 
be  advanced.  From  time  to  time,  the  population  limit  in  laws 
intended  for  Cincinnati  was  increased  so  as  to  shut  out  Cleve- 
land. Before  1870,  the  usual  form  came  to  be,  all  cities  of  the 
first  class  having  upwards  of  1 50,000  population."  It  was  be- 
coming evident  that  differences  in  population  were  only  the 
excuse  for  a  classification  really  based  on  differences  in  geo- 
graphical location  and  industrial  development.  One  of  the 
distinctly  special  acts  of  this  period,  clothed  in  general  form, 

1  O.  L.,  60  v.  95.  a  Ibid.,  57  v.  141.        *Ibid.,  60  v.  124. 

4  Ibid.,  60  v.  121.  *  Ibid.,  59  v.  130.        •  Ibid.,  63  v.  222. 

7  Ibid.,  59  v.  123.  8  Ibid.,  61  v.  146.        '  Ibid.,  61  v.  100. 

10  Ibid.,  61  v.  72,  62  v.  135.        "  Ibid.,  63  v.  189-190,  64  v.  7-8. 


JQ  MUNICIPAL  GOVERNMENT  [388 

but  affecting  Toledo  alone,  referred  to  all  cities  advanced  in 
grade  to  the  first  class  between  decennial  periods,  and  prior  to 
May,  1867.*  Dayton  was  singled  out  by  two  acts,  one  refer- 
ring to  all  cities  of  the  second  class  having  over  20,000  popu- 
lation,2 and  the  other  referring  to  "  any  city  having  a  popula- 
lation  of  less  than  25,000,  and  more  than  20,000  at  the  last 
federal  census." 3  "Any  city  of  the  second  class,  situated  in 
any  county  having  a  population  of  more  than  42,000  inhabit- 
ants at  the  last  federal  census,  the  commissioners  whereof 
shall  have  been  empowered  to  erect  a  court  house,"  was  au- 
thorized to  levy  a  tax  and  give  $25,000  towards  this  enter- 
prise.4 There  were  four  counties  with  the  population  named, 
each  containing  a  city  of  the  second  class.  It  only  remained 
for  the  legislature  to  authorize  one  of  them  to  build  a  court 
house,  and  the  law  just  referred  to  would  become  very  special 
at  once.  Another  act  permitted  "  the  council  of  any  incorpor- 
ated village  having  taxable  property  exceeding  $iGO,OOOand 
less  than  $125,000,"  to  establish  a  cemetery  on  certain  condi- 
tions.3 A  law  of  April  13,  i868,6  said  in  section  one:  "The 
city  council  of  any  city  of  the  first  class,  having  a  population 
exceeding  150,000,  shall  have  the  power  to  issue  the  bonds  of 
such  city,  in  any  sum  not  exceeding  $150,000,  to  be  used  for 
the  purpose  of  completing  the  Eggleston  avenue  sewer." 
Section  three  said  :  "  Whenever  any  of  the  bonds  herein  pro- 
vided for  shall  be  for  sale,  not  less  than  ten  days'  previous 
notice  of  said  sale  shall  be  advertised  in  Cincinnati."  During 
the  five  years  from  1864  to  1868  inclusive,  eighty  acts,  gen- 
eral in  form,  were  passed,  making  special  classifications  of 
cities  and  villages ;  while  fifty-six  other  acts  recognized  the 
general  classification  adopted  in  the  law  of  1852. 

It  would  seem  by  this  time  that  an  observer  must  begin  to 

1  O.  L.,  64  v.  52.      See  also  65  v.  104-106.  2  Ibid.,  64  v.  121. 

8  Ibid.,  64  v.  123.  *  Ibid.,  64  v.  129. 

6  Ibid.,  64  v.  203.  •  Ibid.,  65  v.  86. 


389] 


IN  MICHIGAN  AND  OHIO. 


doubt  the  existence  of  a  court  of  law  in  Ohio,  to  which  the  in- 
terpretation of  the  constitution  could  be  referred.  But  in  the 
December  term  of  1868,  the  Supreme  Court  decided  the  case 
of  Welker  vs.  Potter.1  A  law  passed  in  1866,  conferring  cer- 
tain powers  in  regard  to  street  improvements  upon  cities  of 
the  first  class  with  less  than  100,000  population  at  the  last 
federal  census,2  was  upheld  by  this  decision.  The  constitutional 
provision  considered  was  the  one  requiring  that  "  all  laws  of  a 
general  nature  shall  have  a  uniform  operation  throughout  the 
state."3  Nine  years  later,  in  the  case  of  The  State  vs.  Mit- 
chell,4 the  court  explained  that  in  this  earlier  case  the  question 
of  granting  corporate  powers  by  special  act  had  not  been 
brought  up  or  considered  at  all.  This  decision  made  in  1868, 
after  twelve  years  of  really  special  legislation,  was  not  calcu- 
lated to  instil  in  the  minds  of  Ohio  law-makers  any  new 
respect  for  the  constitutional  limitations  requiring  general  leg- 
islation. The  laws  of  1869  speak  for  themselves.  By  one, 
"  the  city  council  of  any  city  of  the  second  class  having  a  pop- 
ulation exceeding  20,000  and  not  exceeding  20,100,  at  the  last 
federal  census,"  was  authorized  to  issue  bonds  for  the  payment 
of  its  debt.5  The  act  of  May  6th  is  quite  a  curiosity.6  Here 
is  the  first  section  :  "  The  city  council  of  any  city  of  the  first 
class  having  a  population  of  150,000  inhabitants,  wherein  a 
public  avenue  of  not  less  than  one  hundred  feet  in  width  is  now 
projected,  to  be  known  as  '  Gilbert  avenue/  is  hereby  authorized 
to  issue  the  bonds  of  said  city  in  any  sums  not  exceeding  $  1  50,- 
ooo,  for  improving  such  avenue,  bearing  a  rate  of  interest  not 
to  exceed  seven  and  three-tenths  per  cent,  per  annum  at  such 
dates  and  for  such  length  of  time  as  they  may  deem  expedient, 
the  same  to  be  sold  at  not  less  than  par,  and  the  proceeds 
thereof  to  be  applied  exclusively  to  the  improvement  of  such 

1  18  Ohio  St.,  85.  *  O.  L.,  63  v.  133. 

s  Cons.,  art.  ii,  sec.  26.  *  31  Ohio  St.,  592. 

5O.  L.,  66  v.  144.  8  Ibid.,  66  v.  130. 


72  MUNICIPAL  GOVERNMENT  [390 

'  Gilbert  avenue'  commencing  at  the  western  terminus  of  said 
avenue." 

On  the  very  next  day  after  this  last  act  was  passed,  the 
general  municipal  code  of  1869,  containing  sixty-one  chapters 
and  732  sections,  became  a  law.1  At  the  end,  a  list  of  185 
acts  were  enumerated  and  repealed.  The  object  seems  to 
have  been  the  codification  and  unification  of  the  really  general 
laws,  with  no  pretense  of  putting  an  end  to  special  legislation. 
This  conclusion  finds  weighty  support  in  the  wording  of  an 
act  passed  at  the  opening  of  the  legislative  session  of  1870, 
which  authorized  the  council,  "  in  cities  of  the  second  class, 
containing  a  population  of  9,229,  and  no  more,  according  to 
the  census  of  1860,"  to  build  a  railway  within  the  corporate 
limits.2 

III.    Special  legislation  since  1870  under  the  influence 
of  Siipreme  Court  decisions. 

In  the  December  term  of  1870,  a  case3  was  brought  to  the 
Supreme  Court  involving  the  constitutionality  of  a  special  act 
passed  in  the  preceding  April,  "  to  prescribe  the  corporate 
limits  of  the  city  of  Cincinnati."4  As  a  matter  of  fact,  by  this 
law  the  boundaries  of  the  city  had  been  extended  to  cover 
considerable  outlying  territory  in  which  were  included  several 
incorporated  villages.  The  act  was  declared  void,  and  the 
court  put  forward  these  three  propositions:  (i)  The  General 
Assembly  cannot,  by  special  act,  create  a  corporation.  (2)  It 
cannot,  by  special  act,  confer  corporate  powers  on  corpora- 
tions already  existing.  (3)  In  the  purview  of  these  proposi- 
tions and  of  the  constitutional  provisions  on  which  they  are 
based,  there  is  no  distinction  between  private  and  municipal 
corporations.  In  the  following  session  of  the  general  as- 
sembly, 1871,  it  seems  that  two-thirds  of  the  laws,  general  in 

1  O.  L.,  66  v.  145-286.  l  Ibid.,  67  v.  n. 

3  The  State  v.  The  City  of  Cincinnati,  20  Ohio  St.,  18. 
*O.  L.,  67  v.  141. 


39 1  ]  IN  MICHIGAN  AND  OHIO.  73 

form,  referring  to  municipalities,  respected  the  established 
classification.  Several  laws  affected  cities  with  over  150,000 
or  180,000  population.  One  referred  to  those  with  from 
11,000  to  12,000  population.1  For  purposes  of  tax  limitation 
villages  were  classed  as  those  with  more  and  those  with  less 
than  3,000  population.2  In  each  of  the  two  classes  of  cities 
there  were  made  three  grades,  the  population  limits  of  the  first 
class,  third  grade,  being  exactly  the  same  as  of  the  second 
class,  first  grade — 30,000  to  80,000. 

The  practice  of  the  Supreme  Court  in  deciding  that  certain 
acts  brought  before  it  were  not  unconstitutional  under  other 
provisions,  without  considering  the  question  involved  in  con- 
ferring corporate  powers  affecting  only  one  city,  doubtless  led 
to  a  good  deal  of  confusion  for  several  years  as  to  the  real  at- 
titude of  the  court  toward  classification.  The  case  of  Walker 
vs.  Cincinnati3,  decided  in  1871,  like  that  of  Welker  vs.  Potter4, 
already  referred  to,  was  such  a  case.  The  act  conferring  upon 
cities  of  the  first  class  with  150,000  inhabitants  the  right  to 
construct  a  railroad,  under  which  the  "  Cincinnati  Southern" 
was  established,  was  held  not  to  be  in  conflict  with  those  sec- 
tions of  the  constitution  cited  in  the  argument.  Of  course,  it 
is  impossible  to  determine  just  how  much  the  legislature  was 
influenced  by  these  decisions.  But  whatever  the  cause,  its  dis- 
regard for  the  constitution  was  always  a  progressive  factor  in 
its  municipal  law-making.  In  three  acts  of  the  year  1872, 
Cleveland,  which  had  a  population  of  92,000,  was  the  only 
city  included  within  the  different  limits,  50,000  to  100,000, 
80,000  to  100,000  and  90,000  to  I5O.OOO.5  But  the  climax  of 
that  year's  legal  fictions  was  reached  when  "  villages  or  cities 
containing  a  population  of  5,641,  and  no  more,  by  the  federal 
census  of  1870,  published  in  the  last  volume  of  the  Ohio  Sta- 
tistical Report,"  were  authorized  to  erect  car  shops.6 

1  O.  L.,  68  v.  132.  *  Ibid.,  68  v.  133. 

3  21  Ohio  St.,  14.  *  18  Ohio  St.,  85,  supra. 

5O.  L..69  v.  13,  128,  138.  « Ibid.,  69  v.  70. 


74  MUNICIPAL  GOVERNMENT  [392 

It  is  only  very  slowly  that  judicial  light  penetrated  into  this 
legal  jungle.  An  important  step  was  taken,  however,  in  the 
second  case  of  the  State  vs.  The  City  of  Cincinnati.1  Several 
years  before,  a  special  act  had  been  passed  establishing  the 
Cincinnati  Commercial  Hospital,  and  putting  it  under  the 
management  of  a  board  of  trustees,  with  power  to  issue  by- 
laws and  regulations  for  its  government.2  By  a  subsequent 
act  these  rules  and  regulations  were  subjected  to  the  approval 
of  the  city  council  before  going  into  effect.3  The  Court  upheld 
the  former  act,4  as  not  establishing  a  corporation,  but  declared 
the  later  act  unconstitutional  as  conferring  corporate  powers 
on  the  city  council  by  special  act.  These  decisions,  however, 
not  yet  touching  the  question  of  classification,  had  no  deterrent 
effect  on  the  Assembly.  Toledo,  with  a  population  of  31,584, 
was  differentiated  from  Columbus,  whose  inhabitants  num- 
bered 31,274,  not  only  by  being  in  a  different  class,  but  also 
by  the  population  line  fixed  at  31,5005.  Xenia  was  any  city  of 
the  second  class  having  a  population  at  the  last  federal  census 
not  exceeding  6,400,  nor  less  than  6,3OO.6  A  law  was  passed 
to  affect  all  cities  and  villages  through  which  the  National 
Road  passed.7  In  1876,  a  law  was  passed  regulating  the  gen- 
eral tax  for  street  improvements,  to  appply  to  all  cities  except 
cities  of  the  first  class,  "  having  at  the  last  federal  census  of 
A.  D.  1870,  a  population  of  not  less  than  31,500,  nor  more 
than  33,ooo."8 

In  the  years  1874  to  1876  there  were  passed  at  least  nine- 
teen acts  which,  though  general  in  phraseology,  never  could 
apply  to  more  than  one  city.  One  of  these  provided  that  "  in 
all  cities  of  the  first  class,  having  at  the  last  federal  census  a 
population  of  200,000  and  over,  the  police  powers  and  duties 

1  23  Ohio  St.,  445.  2  O.  L. ,  58  v.  151.  3  Ibid.,  61  v.  142. 

4  The  State  of  Ohio  v.  Davis,  23  Ohio  St.,  434,  argued  in  connection  with  the 
other  case. 

5O.  L.,  70  v.  117,  142.  •  Ibid.,  70  v.  116. 

7  Ibid.,  70  v.  153.  8  Ibid.,  72  v.  24. 


393]  IN  MICHIGAN  AND  OHIO.  75 

shall  be  invested  in  and  exercised  by  a  board  of  five  members 
to  be  appointed  by  the  governor."1  This  act  was  tested  be- 
fore the  Supreme  Court  in  the  case  of  The  State  vs.  Covington;2 
and  held  to  be  valid  on  the  ground  that  this  police  board  was 
not  made  a  corporate  body,  and  hence  was  not  given  cor- 
porate powers.  Referring  to  the  phraseology  of  the  act  as 
probably  intended  to  protect  it  from  the  constitutional  provis- 
ion, the  court  said  :  "  If  such  was  the  purpose,  it  is  well  to 
say  here  that  such  ends  cannot  be  accomplished  by  such  means. 
This  enactment  is  essentially  local  and  special  in  its  nature. 
We  do  not  deny  that  the  legislature  may  classify  the  subjects 
of  legislation — to  wit,  cities  and  villages — and  that  a  statute  in 
relation  to  a  class  would  be  treated  as  a  general  law,  within 
the  meaning  of  these  provisions  of  the  constitution,  but  there 
is  no  classification  accomplished  by  this  statute.  Cincinnati 
was,  is,  and  ever  will  be,  the  only  city  in  this  state  that  had  a 
population  of  200,000  and  over  at  the  federal  census  of  1870. 
Cincinnati  therefore  is  the  only  city  to  which  this  statute  can 
ever  apply,  and  it  might  as  well  have  been  named  in  the  act." 
But  the  court  held  that  local  legislation  is  not  prohibited  by 
the  constitution  unless  it  be  of  a  general  nature,  or  be  special 
legislation  conferring  corporate  power.  Hence,  although  the 
circumulocution  of  the  general  assembly  was  rebuked,  the  way 
was  laid  open  for  the  transfer  of  all  the  public  functions  of 
cities  and  villages  to  boards  or  individiduals  not  responsible  to 
the  corporation  in  any  way,  and  this  could  be  done  boldly 
without  any  pretense  of  general  forms.3  A  year  later,  in  the 
case  of  The  State  vs.  Mitchell,4  the  court  carried  its  dictum 

1 0.  L.,  73  v.  70.  2  29  Ohio  St.,  102. 

s  See  also,  The  State  v .  Davis,  23  Ohio  St.,  434,  supra. 

4  31  Ohio  St.,  592,  supra.  This  case  is  a  good  one,  as  showing  how  far  the 
courts  will  go  to  protect  the  innocent  holders  of  bonds  issued  under  an  unconstitu- 
tional statute.  The  law  had  provided  that  the  abutting  owners  on  any  street 
might  petition  for  the  benefits  of  the  act,  and  elect  commissioners  to  superintend 
certain  improvements  desired  to  be  made.  The  city  was  to  issue  bonds  in  advance 
to  pay  for  the  work,  and  special  assessments  were  to  be  levied  to  pay  the  bonds. 
The  court  held  that  where  the  bonds  had  been  issued  and  the  improvements  com- 


76  MUNICIPAL  GOVERNMENT  [394 

into  effect  by  holding  an  act  invalid  which  had  attempted  to 
confer  upon  the  council  of  Columbus  certain  powers  in  regard 
to  street  improvements,  under  the  guise  of  cities  of  the  second 
class  having  above  31,000  population  at  the  last  census.  The 
fatal  clause  in  the  act  was,  "  at  the  last  federal  census."  The 
attitude  of  the  court  certainly  bewildered  the  General  As- 
sembly. For  whereas  in  1877,  before  the  last  decision,  laws 
had  been  passed  applying  to  any  cities  of  the  second  class  in 
this  state  which  by  the  last  federal  census  had  "  a  population 
of  12,652"  J  and  "a  population  of  not  more  than  11,082  nor 
less  than  I  i,o8o,"2  in  the  year  following  an  extra  appropriation 
from  the  school  fund  for  the  support  of  public  libraries  was 
authorized  "  in  all  cities  which,  by  the  last  federal  census,  had, 
and  all  those  which  hereafter,  on  the  first  day  of  March,  in 
any  year,  as  ascertained  by  any  federal  census,  may  have  a 
population  exceeding  90,000  and  less  than  200,000  inhabi- 
tants.'^ This  certainly  was  a  general  law  according  to  the 
rules  of  the  court,  but  it  conferred  powers  on  the  board  of 
education  which  by  a  later  decision  turned  out  to  be  no  cor- 
porate body  at  all  within  the  meaning  of  the  constitution. 
This  is  an  excellent  illustration  of  the  spasmodic  attempts  on 
the  part  of  the  law-makers  to  bring  now  and  then  an  act  within 
the  provisions  of  the  constitution  in  the  spirit  of  the  court's  in- 
terpretation. But  when  at  the  same  session,  mixed  in  with  a  few 
such  attempts,  we  find  many  of  the  old  palpable  violations  re- 
peated, and  other  violations  of  the  spirit  of  the  law  as  glaring 
as  an  act  which  actually  authorized  "  any  incorporated  village, 
which,  by  the  federal  census  of  1870,  had,  and  which,  by  any 
subsequent  federal  census,  may  have  a  population  of  1087  "4 
to  borrow  money  for  railway  construction,  it  seems  utterly  in- 
conceivable that  all  these  acts  were  voted  on  and  passed  by  the 
same  assembly. 

pleted,  all  the  owners  who  had  in  any  way  participated  in  the  proceedings  leading 
to  the  execution  of  the  work,  were  estopped  from  pleading  the  unconstitutionality 
of  the  act  in  order  to  avoid  paying  their  assessments. 

JO.  L.,  74v.  174.     *  Ibid.,  74  v.  203.     3  Ibid.,  75  v.  II.     *  Ibid.,  75  v.  MO. 


IN  MICHIGAN  AND  OHIO, 


77 


On  May  14,  1878,  a  new  municipal  code  was  enacted.1  In 
it  we  find  the  intricate  system  of  classification  which  still  re- 
mains as  the  groundwork  of  Ohio  legislation.  Cities  of  the 
first  class  were  divided  into  three  grades,  with  provision  for  a 
fourth  grade  to  be  composed  of  cities  afterwards  advanced 
from  the  second  class.  Cities  of  the  second  class  were  di- 
vided into  four  grades.  Villages  were  divided  into  two 
classes.  As  in  the  laws  of  1852  and  1853,  villages  could  be 
advanced  to  cities  of  the  second  class  when  their  population 
exceeded  5,000,  and  second-class  cities  could  become  first- 
class  cities  when  their  population  exceeded  20,000.  But  ad- 
vancement was  optional,  and  there  certainly  were  no  very 
great  inducements  held  out  for  the  exercise  of  the  option,  in 
the  shape  of  liberal  legislation.  It  seems,  further,  that  the  ad- 
vancement from  grade  to  grade  within  the  class  was  not 
optional.  The  wording  of  the  section  has  a  peculiar  Ohio 
twang.  Grades  were  to  be  determined  by  the  formula  — 
41  Those  which,  on  the  first  day  of  July  last,  had,  and  those 
which  hereafter,  on  the  first  day  of  July  in  any  year,  have,  ac- 
cording to  any  official  report  or  abstract  of  the  then  next  pre- 
ceding federal  census,"  a  population  of  over  200,000  shall  con- 
stitute the  first  grade,  between  90,000  and  200,000  the  second 
grade,  and  between  31,500  and  90,000  the  third  grade  of  the 
first  class;  between  30,500  and  31,500  the  first  grade,  between 
20,000  and  30,500  the  second  grade,  between  10,000  and 
20,000  the  third  grade,  and  below  10,000  the  fourth  grade  of 
the  second  class.  The  first  five  grades  included  one  city  each, 
and  it  was  very  evident  that  the  population  basis  was  simply 
incidental.  It  seems  that  the  only  way  in  which  a  particular 
grade  could  be  recruited  was  by  cities  coming  up  from  a  lower 
class.  For  the  cities  which  had  a  population  within  the  re- 
spective limits  at  the  time  of  the  act,  that  is,  by  the  census  of 
1870,  were  to  remain  in  their  grades  as  then  assigned.  At 
least,  so  it  worked  in  practice  as  recognized  by  later  laws,  and 
'O.  L.,  75  v.  161-419. 


^g  MUNICIPAL  GOVERNMENT  [396 

no  provision  was  made  for  voluntary  advancement  from  grade 
to  grade.  The  code  embodied  in  its  later  divisions,  with  little 
change,  the  already  existing  laws  passed  from  time  to  time. 
At  the  end,  123  acts  were  enumerated  and  repealed.  On  the 
same  day  acts  were  passed  for  cities  with  10,592*  and  8.O752 
population  respectively  at  the  last  census. 

After  a  quarter  of  a  century  of  experiment  and  struggle 
against  an  oppressive  constitution  and  a  capricious  Supreme 
Court,  at  last  the  assembly  had  succeeded  in  laying  down  the 
main  lines  of  municipal  law-making.  With  the  five  chief 
cities  each  settled  in  its  own  grade  for  all  time  with  moral 
certainty,  it  only  remained  necessary  to  add  a  new  grade  from 
time  to  time  as  some  smaller  town  rose  to  prominence,  and  in 
the  case  of  villages  and  less  important  cities,  to  describe  them 
by  their  population  at  the  last  census  with  the  redeeming  clause 
which  made  the  law  applicable  to  corporatins  with  the  same 
population  at  any  future  census.  It  was  even  deemed  safe  to 
grant  a  margin  of  two,  five  or  ten  inhabitants,  and  in  some 
cases  still  more.  It  was  an  exciting  play  with  chance.  I 
imagine  that  many  an  hour  has  passed  swiftly  for  Ohio  legis- 
lators as  they  busied  themselves  with  the  pleasing  mathemat- 
ical problem  of  how  much  latitude  in  population  could  be  given 
in  any  particular  act  without  incurring  the  calamitous  prob- 
ability that  more  than  one  city  or  village  would  come  within 
its  scope  in  the  course  of  a  century.  The  Ohio  legislature 
had  won  a  splendid  triumph.  The  situation  was  so  completely 
in  its  own  hands  that  there  was  no  need  to  adopt  the  form  of 
general  legislation  in  most  cases  referring  to  villages  and 
minor  cities.  Duriug  the  seventeen  years  from  1876  to  1892 
inclusive,  more  than  1200  special  acts  were  passed  granting 
by  name  to  strictly  municipal  corporations  the  right  to  issue 
bonds  for  every  imaginable  purpose,  to  transfer  certain  speci- 
fied funds,  to  build  halls,  to  sell  or  buy  land,  to  build  bridges, 
to  construct  sewers,  to  levy  special  taxes,  to  improve  streets, 
1 0.  L.,  75  v.  541.  *  Ibid.,  75  v.  557. 


397] 


IN  MICHIGAN  AND  OHIO. 


79 


to  erect  gas  works,  to  extend  water  works,  to  establish  a 
police  force,  to  procure  fire  engines,  to  sink  natural  gas  wells, 
etc.,  etc.,  including  a  few  acts  changing  the  corporate  name. 
These  acts  could  be  passed  with  impunity,  either  because  the 
citizens  of  the  localities  were  indifferent,  or  because  by  the 
simple  application  of  the  cure-all  formula  any  one  of  the  acts 
could  be  made  general,  if  any  symptoms  of  opposition  ap- 
peared. In  practice  there  was  much  variation  from  year  to 
year  in  the  number  of  these  acts.  From  fifty-four  in  1877 
they  fell  to  twenty- four  in  1880,  climbed  to  fifty-four  again  in 
1883,  and  reached  their  maximum  at  one  hundred  and 
seventy-six  in  1889,  dropping  to  eighty-one  in  1892,  and 
rising  again  to  eighty-eight  in  1894.  Of  the  1202  such  acts 
passed  between  1876  and  1892,  594  gave  power  to  borrow 
money,  470  gave  power  to  transfer  funds,  and  60  gave  power 
to  levy  a  special  tax,  making  a  total  of  1124  or  93.5  per  cent, 
giving  special  financial  powers  to  the  cities  and  villages  named 
in  the  acts.1  No  better  proof  is  needed  that  the  most  difficult 

1  Local  and  Special  Acts  of  the  Ohio  Legislature  Conferring  Powers  upon 
Municipal  Corporations. 


Year. 

Total  number 
of  acts. 

Conferring 
financial 
powers. 

To  borrow 
money. 

To  transfer 
funds. 

To 

levy 
tax. 

1876.  . 

II 

7 

3 

I 

3 

1877   . 

54 

49 

25 

15 

9 

1878  .  . 

4i 

35 

22 

9 

4 

1879-  . 

43 

37 

17 

15 

5 

1880  .  . 

24 

20 

6 

10 

4 

1881  .  . 

3i 

24 

15 

8 

I 

1882  .  . 

24 

24 

9 

4 

ii 

1883  .  . 

54 

53 

38 

15 

o 

1884  . 

56 

52 

26 

24 

2 

1885  .  . 

62 

59 

38 

18 

3 

1886  .  . 

66 

61 

31 

27 

1887  .  . 

80 

75 

46 

26 

3 

i8>.8  .  . 

1  17 

109 

c  i 

*6 

2 

1889  .  . 

/ 
I76 

1  68 

J 

IC5 

58 

1890  .  . 

126 

121 

56 

62 

3 

1891  .  . 

156 

'51 

72 

77 

2 

1892  .  . 

81 

79 

34 

45 

O 

1876-92.  .  . 

1202 

1124 

594 

47° 

60 

30  MUNICIPAL  GOVERNMENT  [398 

problem  to  solve  by  general  municipal  laws  is  the  proper  limi- 
tation upon  the  local  financial  powers,  in  a  system  where  there 
is  no  state  control  over  the  localities  except  that  exercised  by 
the  legislature. 

It  seems  hardly  necessary  to  follow  through,  from  1878  on, 
the  acts  special  in  effect,  but  general  in  form.  However,  there 
were  added  from  year  to  year  some  new  variations  in  the  form- 
ulae of  circumlocution,  which  we  may  consider  for  a  moment. 
In  1881  certain  powers  were  conferred  upon  "the  council  of 
any  city  of  this  state  which  by  the  federal  census  of  1880  had 
a  population  entitling  it  to  pass  from  the  rank  of  a  city  of  the 
third  grade,  second  class,  into  the  rank  of  a  city  of  the  second 
grade,  second  class,  but  which  has  provided  by  ordinance  that 
such  city  shall  remain  a  city  of  the  third  grade,  second  class.1 
The  way  in  which  a  law  is  made  to  apply  to  various  cities  is 
well  illustrated  by  the  act  of  April  16,  1883,  establishing  a 
board  of  tax  commissioners  "  in  each  city  of  the  first,  second 
and  third  grades  of  the  first  class,  and  in  cities  of  the  second 
class,  first  grade,  and  in  cities  having  a  population  of  20,000, 
and  not  more  than  30,000,  and  in  cities  having  a  population  of 
15,435,  by  the  last  federal  census."2  Two  years  later  an  act 
authorized  the  issue  of  bonds  by  "the  city  councils  of  cities  of 
the  second  class,  in  which  a  majority  of  the  electors,  within 
three  years  last  past,  have  voted  in  favor  of  the  erection  of  a 
market  house  in  said  city,  and  which,  from  any  cause,  has  not 
been  erected  therein."3  Sometimes  the  name  of  the  city  af- 
fected was  given  in  the  title  of  the  act,  though  in  the  act  itself 
it  was  referred  to  by  its  grade  and  class.  It  was  enacted  in 
1885,  that  "any  city  of  the  second  grade  of  the  first  class  is 
hereby  authorized  to  issue  bonds  to  an  amount  not  exceeding 
$65,000,  to  provide  means  to  construct  and  rebuild  a  bridge 
over  Walworth  Run,  on  Pearl  street,  in  the  city  of  Cleveland."4 

1 0.  L.,  78  v.  178.  » ibid.,  80  v.  124. 

»  Jbid. ,  82  v.  90.  *  Ibid.,  82  v.  1 14. 


399]  IN  MICHIGAN  AND  OHIO.  gj 

About  two  weeks  later,  a  law  affecting  Dayton,  provided, 
"  That  the  city  councils  of  cities  of  the  second  grade  of  the  sec- 
ond class  be  and  is  hereby  authorized  and  empowered,  for  the 
purposes  herein  set  forth  to  issue  bonds  upon  the  terms  herein 
named,  entitled  as  follows,  and  to  the  amount  severally  set 
forth  :  Park  street  sewer  bonds,  $65,000 ;  Southwestern  sewer- 
age bonds,  $35,000.  Said  Park  street  bonds  to  be  issued  to 
enable  the  city  council  of  said  city  to  construct  a  sewer  or 
drain,  beginning  at  the  Miami  river  and  running  through  Ap- 
ple, Oak  and  Ford  streets,  and  through  and  along  the  present 
course  of  what  is  known  as  the  Park  street  sewer,  Parrott  street 
drain  and  Steel's  drains,  to  take  the  surface  drainage  water  off 
of  the  southern  and  eastern  parts  of  said  city  ;  said  southwest- 
ern sewerage  bonds  being  issued  to  enable  the  city  council  of 
said  city  to  construct  drains  for  the  purpose  of  draining  the 
surface  water  from  Power  street,  South  Broadway  and  Euclid 
avenues,  and  the  southern  and  western  parts  of  said  city."  x 
Bad  grammar  is  certainly  not  the  worst  feature  of  such  legis- 
lation, though  it  does  point  to  ignorance  or  carelessness  not 
complimentary  to  the  general  assembly  of  one  of  the  most 
populous  states  in  the  Union. 

In  1886  a  special  tax  levy  was  authorized  "  in  any  city  of 
the  fourth  grade  of  the  second  class  having  by  the  last  federal 
census  a  population  of  not  less  than  12,258,  and  not  more 
than  13,000,  and  in  which  city  there  is  established  and  main- 
tained by  a  public  library  association,  not  organized  for  profit, 
a  public  library  free  to  all  the  inhabitants  of  such  city,  and 
containing  not  less  than  2,000  volumes."2  This  description 
goes  into  enough  detail  to  identify  an  escaped  convict.  Another 
instance  of  such  description  is  found  in  an  act  authorizing  the 
issue  of  bonds  to  purchase  a  site  and  erect  normal  school 
buildings  by  "the  council  of  any  incorporated  village  in  this 
state,  wherein,  at  the  time  of  the  passage  of  this  act,  there 
exists  a  private  corporation,  not  for  profit,  incorporated  under 
1  O.  L.,  82  v.  129.  » Ibid.,  83  v.  79. 


g2  MUNICIPAL  GOVERNMENT  [400 

the  genera),  incorporation  laws  of  this  state,  and  the  purpose 
for  which  said  incorporation  is  formed  is  to  secure  to  its  mem- 
bers and  patrons  the  advantages  of  education  in  all  depart- 
ments of  learning  and  knowledge,  especially  in  the  branches 
usually  comprehended  in  academic  and  university  collegiate 
courses,  though  not  excluding  such  primary  instruction  as  is 
usually  furnished  in  common  and  normal  schools."  l  A  good 
many  acts  were  passed  at  various  times  affecting  villages  in 
counties  containing  cities  of  a  certain  class  and  grade.  One 
applied  to  all  villages  in  Wood  county,2  authorizing  them  to 
sink  gas  wells.  A  law  of  April  12,  1889,  was  to  the  effect, 
that  "  in  cities  of  the  third  grade  of  the  second  class,  which 
were  advanced  to  said  third  grade,  second  class,  during  the 
year  of  our  Lord  1887,  and  which  had,  according  to  a  census 
taken  in  such  cities  in  compliance  with  the  provisions  of 
chapter  four,  division  ^wo,  Title  XII,  Revised  Statutes,  a  po- 
pulation of  10,221  on  the  twentieth  day  of  May  in  the  said 
year  of  our  Lord,  1887,  there  shall  be  a  board  of  public 
affairs."3 

The  position  of  defiance  toward  court  and  constitution  taken 
so  constantly  and  so  successfully  by  the  assembly  needs  no 
better  proof  than  the  act  of  March  24,  1890,  which  provided, 
"  that  in  any  village,  situated  in  a  county  containing  a  city  of 
the  first  grade  of  the  first  class,  which  has  been  heretofore 
specifically  empowered  by  a  special  act  of  the  legislature  to 
issue  bonds  for  the  purpose  of  purchasing  a  suitable  site  and 
erecting  thereon  a  building  containing  a  town  hall  and  offices 
for  the  officers  of  the  corporation,  and  said  act  has  been  found 
to  be  unconstitutional  because  of  conferring  corporate  powers 
by  special  act,  that  the  village  council  of  any  such  village  is 
hereby  authorized  to  issue  the  bonds  of  the  said  village,  not 
exceeding  in  amount  $17,000,  to  sell  the  same  and  use  the 
proceeds  thereof  in  purchasing  a  suitable  site,  and  erecting 

1  O.  L.,  84  v.  63.  *  Ibid.,  86  v.  429.  '  Ibid.,  86  v.  246. 


4o  I  ]  IN  MICHIGAN  AND  OHIO.  83 

thereon  a  building  containing  a  town  hall  and  offices  for  the 
officers  of  the  corporation."  '  And  yet  at  this  same  session  of 
the  assembly  eight  village  councils  were  authorized  by  name 
to  erect  town  halls. 

The  classification  of  cities  had  by  no  means  reached  its 
maximum  of  incomprehensibility  in  the  municipal  code  of 
1878.  Although  that  law  had  evidently  contemplated  the 
possibility  of  cities  being  advanced  from  the  second  class  to 
the  first,  in  providing  that  such  cities  should  constitute  the 
fourth  grade  of  the  first  class,  no  laws  were  ever  provided  for 
this  empty  grade.  In  1888,  however,  the  general  assembly 
enacted  that  whenever  a  city  of  the  second  class  should  by 
vote  of  the  people  become  a  city  of  the  fourth  grade  of  the 
first  class,  it  should  be  governed  by  its  own  laws  then  in  force 
until  new  laws  were  enacted  for  its  new  grade.2  There  is  no 
evidence  that  such  laws  were  enacted,  and  I  see  no  particular 
inducement  under  the  circumstances  for  any  second  class  city 
willing  its  own  promotion,  unless  perhaps  there  is  prestige  to 
be  gained  by  the  mere  fact  of  being  a  city  of  the  first  class  in 
Ohio.  But  in  1891  the  legislature  put  Springfield  into  a  grade 
by  itself,  the  third  grade  a  of  the  second  class,  comprising  all 
cities  with  a  population  between  28,000  and  33,000  at  the 
census  of  1890,  or  at  future  censuses.3  In  1894,  cities  between 
16,000  and  18,000  were  constituted  the  third  grade  b  of  the 
second  class.4  Hamilton  was  the  town  affected.  Ashtabula, 
being  all  the  cities  with  a  population  between  8,330  and  9,050, 
was  made  the  fourth  grade  a  of  the  same  class.5  Although 
there  appears  to  be  some  confusion  in  section  1548  of  the 
statutes  as  last  revised,  the  actual  status  of  the  chief  cities  as 
recognized  by  the  legislature,  with  their  population  by  the 
census  of  1890,  seems  to  be  as  presented  in  the  accompanying 

1  O.  L.,  87  v.  94.  *  Ibid.,  85  v.  130.  J  Ibid.,  88  v.  159. 

4  Ibid.,  91  v.  14.  5  Ibid.,  91  v.  58. 


84 


MUNICIPAL  G O  VERNMEN T 


[402 


table.1  The  last  column  shows  the  number  of  acts  referring  to 
these  cities  specially,  passed  at  the  legislative  session  of  1894. 
The  total  number  of  such  acts  passed  would  be  something 
less  than  176,  the  sum  of  the  figures  in  the  column,  because  in 
several  cases  two  or  three  cities  were  specified  by  their  par- 
ticular grades  or  populations  in  the  same  act.  These  figures, 
of  course,  do  not  include  the  special  acts  for  villages  desig- 
nated by  population.  Of  these  there  were  in  1891  as  many  as 
thirty-five.  One  of  the  confusing  results  of  this  way  of  naming 
villages  and  cities  by  population,  is  that  the  same  method  has 
been  applied  to  counties  and  townships,  although  they  are  not 
held  to  be  corporations  in  the  meaning  of  the  constitutional 

1  Table  Showing  the  Classification  of  Ohio  Cities,  1894. 


«J 

1 
O 

Population  basis 
of  classification. 

By 
which 
census. 

Names  of  cities. 

Population 
in  1890. 

Number 
of    acts 
referring 
to.passed 
in    1894. 

f 

I 

200,000+ 

1870 

Cincinnati. 

296,908 

43 

First 

2 

90,000-  200,000 

1870 

Cleveland. 

261,353 

22 

Class' 

3 

31,500-90,000 

1870 

Toledo. 

8M34 

H 

4 

20,000-3  1,  500' 

Any 

None. 

f 

I 

30,500-31,500 

1870 

Columbus. 

88,150 

10 

2 

20,000-30,500 

1870 

Dayton. 

61,220 

12 

3 

10,000-20,000 

1870 

Youngstown. 

33.220 

4 

Akron. 

27,601 

2 

Canton. 

26,189 

2 

Zanesvilie. 

21,009 

5 

Sandusky. 

18,471 

o 

Newark. 

14,270 

i 

Second 

Portsmouth. 

12,394 

i 

an(-c  \ 

Perhaps  9  others. 

10.09210 

•UKI 

18.553 

10 

3a 

28,000-33,000 

1890 

Springfield. 

31.897 

6 

3b 

16,000-18,000 

1890 

Hamilton. 

!7.565 

8 

4 

5,000-10,000 

1870 

Bellaire. 

9,934 

o 

Piqua. 

9,090 

i 

Marion. 

8,327 

2 

Marietta. 

8,273 

6 

Perhaps  24  others. 

5247108224 

24 

I 

4» 

8,330-9.050 

1890 

Ashtabula. 

8,338 

3 

1  ThU  is  an  inference  fron  the  other  provisions  of  the  law. 


403]  IN  MICHIGAN  AND  OHIO.  85 

restriction.  Another  peculiar  phenomenon  is  the  passage  of 
precisely  similar  laws  sometimes  under  this  general  population 
formula,  and  sometimes  under  the  undisguised  names  of  the 
municipalities  as  avowedly  special  acts.  This  certainly  must 
be  the  result  of  the  local  origin  of  local  acts,  those  drafting 
the  measures  in  many  cases  being  ignorant  of  the  attitude  and 
decisions  of  the  Supreme  Court  on  the  subject  of  special  legis- 
lation conferring  corporate  powers. 

IV.  The  doctrines  of  the  Supreme  Court. 

Even  a  general  study  of  special  legislation  in  Ohio  under 
the  constitution  of  1850  would  not  be  complete  without  going 
a  little  more  fully  into  the  decisions  of  the  Supreme  Court 
than  I  have  done  in  the  preceding  pages.  Perhaps  the  follow- 
ing summary  of  the  rules  already  established  will  serve  as  a 
convenient  presentation  of  the  main  points  in  the  decisions  of 
the  court,  if  supplemented  by  a  little  explanation  of  the  prin- 
cipal cases  not  referred  to  already. 

(1)  Local  legislation  is  not  prohibited  by  the  constitution.1 

(2)  The  constitutional  prohibition  of  special  acts  conferring 
corporate  power,  applies  to   private  and  municipal  corpora- 
tions without  distinction.2 

(3)  School  districts  and  boards  of  education  partake  of  the 
public  nature  of  the  county  and  the  township,  and  are  not  cor- 
porate bodies  in  the  meaning  of  the  constitution^ 

1  State  v.  Covington,  29  Ohio  St.,  102,  supra. 

1  State  v.  Cincinnati.  20  Ohio  St.,  18,  supra. 

8  State  v.  Powers,  38  Ohio  St.,  54.  In  this  case  the  general  assembly  had 
created  a  special  school  district,  and  provided  for  the  election  of  a  board  of  educa- 
tion, to  whom  property  was  to  be  transferred,  and  who  were  to  have  power  to  levy 
taxes,  and  all  other  powers  belonging  to  "  village  districts,"  which  were  declared  to 
be  corporate  bodies  in  the  general  law.  The  court  said,  "  It  is  quite  obvious  to 
us  that  county  and  township  organizations,  although  quasi  corporations,  are  not 
within  the  meaning  of  this  provision  of  the  constitution  ;  and,  upon  full  considera- 
tion,  we  are  unanimous  in  the  opinion  that  school  districts,  as  similar  organizations, 
though  declared  by  statute  to  be  bodies  politic  and  corporate,  are  not  within  the 


86  MUNICIPAL  GOVERNMENT  [404 

(4)  Whether  or  not  certain  powers  granted  by  the  general 
assembly  are  corporate  powers,  depends  largely  upon  the  na- 
ture of  the  body  upon  which  they  are  conferred.1 

(5)  It  is  competent  for  the  assembly  to  establish  special 
boards  for  specified  cities,  to  be  appointed  by  the  governor  or 
otherwise,  independent  of  the  municipal  corporation,  to  which 
public  governmental  functions,  such  as  the  police,  are  given 
without  incorporation.2 

(6)  The  fact  that  certain  officers  were  everywhere  chosen 
by  the  people  of  the  localities  at  the  time  that  the  constitution 
was  adopted,  does  not  operate  as  a  limitation  upon  the  power 
of  the  legislature  to  provide  for  their  appointment  by  the  state 
authorities,  or  otherwise.3 

(7)  For  purposes  of  general  legislation,  the  classification  of 
cities  and  villages  according  to  population  is  proper.4 

(8)  The  principle  of  classification  must  be  a  reasonable  one. 
The  presence  in  a  city  or  village  of  a  college  or  university  is 
just  ground  for  classification.5 

(9)  Classification  according  to  population  may  be  proper, 
although  at  the  time  only  one  city  is  included  in  a  given  grade, 
if  other  cities  may  come  into   the  same  grade  by  growth    in 
population,  and  municipal  action.6 

reason  or  meaning  of  this  inhibition  of  the  constitution."  Reference  is  made  to 
State  v.  Cincinnati,  20  Ohio  St.,  18,  where  on  page  37,  a  similar  dictum  in 
regard  to  counties  and  townships  is  given,  based  on  the  decision  in  the  case  of  The 
Commissioners  of  Hamilton  County  11.  Mighels,  7  Ohio  St.,  109. 

1  State  v.  Davis,  23  Ohio  St.,  434,  and  State  v.  Cincinnati,  Ibid.,  445,  supra. 

*  State  v.  Covington,  29  Ohio  St.,  102,  supra. 

3  Ibid.      For  distinction  between  local  and  governmental  functions,  cf.  Cincin- 
nati v.  Cameron,  33  Ohio  St.,  336. 

4  State  v.  Brewster,  39  Ohio  St.,  653. 

5  Bronson  v.  Oberlin,  41  Ohio  St.,  112. 

6  State  v.  City  of  Toledo,  48  Ohio  St.,  1 12.     The  act  considered  in  this  case  was 
passed  on  January  22,   1889  (O-  L.,  86  v.  7),  and  conferred  upon  cities  of  the 
third  grade  of  the  first  class  the  power  to  issue  bonds  for  natural  gas  works.     The 
question  of  the  issue  was  to  be  submitted  to  the  voters  at  the  municipal  or  the  general 


405]  IN  MICHIGAN  AND  OHIO.  87 

(10)  Any  act  is  special,  no  matter  what  its  form,  if  it  applies 
to  only  one  city,  and  never  can  apply  to  any  other  without 
further  legislative  action.1 

The  fine-spun  distinctions  in  the  decisions  of  the  court,  and 
the  seeming  uncertainty  of  its  attitude  toward  city  legislation, 
was  doubtless  largely  the  result  of  a  division  of  sentiment 
among  the  judges.  In  the  case  of  The  State  vs.  Pugh,3  where 
an  act  was  held  to  be  unconstitutional,  owing  to  the  impossi- 
bility of  any  other  city  than  Columbus  ever  coming  under  its 
provisions,  a  dissenting  opinion  was  delivered  by  Judge  Okey 
and  concurred  in  by  Judge  Follett,  thus  pitting  two  judges 
against  three.  Judge  Okey  said :  "  If  the  question  were  res 
Integra,  by  no  means  could  it  be  said  to  be  clear  that  this 
court  would  hold  that  article  thirteen,  section  one,  of  the  con- 
stitution, has  any  application  to  municipal  corporations."  But 
he  admitted  that  the  series  of  cases  already  decided  had  left 
that  construction  settled.  He  then  reviewed  the  development 
of  classification,  pointing  out  its  necessity  in  order  to  allow 

election  next  succeeding  after  the  passage  of  the  act.  The  municipal  election  came 
in  April,  and  the  general  election  in  November.  July  I  was  the  date  on  which 
population  was  to  be  determined  for  the  advancement  of  cities  from  one  class  to 
another,  by  the  geneial  law.  Toledo  was  the  only  city  in  the  third  grade  of  the  first 
class,  but  there  were  other  cities  with  a  population  between  31,500  and  90,000,  the 
limits  fixed  in  the  code  for  that  grade.  In  spite  of  the  fact  that  the  code  declared 
that  cities  thereafter  advanced  from  the  second  to  the  first  class  should  form  the  fourth 
grade  of  the  latter  class,  the  court  held  that  cities  of  the  second  class  with  more  than 
31,500  population  might  have  gone  into  the  third  grade,  first  class,  on  the  first  of 
July  of  the  year  when  the  act  under  consideration  was  passed,  skipping  the  fourth 
grade  mentioned  in  the  code,  as  no  further  provision  had  been  made  for  it  in  the 
way  of  legislation.  The  court  did  not  take  into  consideration  that  a  law  of  1888, 
O.  L.,85  v.  130  had  provided  that  cities  advanced  from  the  second  class  into  the 
fourth  grade  of  the  first  class,  should  be  governed  by  their  own  laws  till  legislation 
was  provided  for  the  grade  into  which  they  entered.  This  shows  the  extremity 
to  which  the  court  would  goto  uphold  special  legislation  under  the  guise  of 
classification. 

1  State  v.  Pugh,  43  Ohio  St.,  98,  and  State  v.  Mitchell,  31  Ohio  St.,  592, 
supra. 

3  43  Ohio  St.,  98,  supra. 


88  MUNICIPAL  GOVERNMENT  [406 

legislation  fitted  to  the  varying  and  imperative  needs  of  the 
large  cities.  In  the  case  of  The  State  vs.  Brewster,1  this  same 
judge  had  delivered  the  opinion  of  the  court  upholding  the 
classification  of  cities  as  enacted  in  1878.  He  had  said:  "The 
validity  of  that  classification  has  been  repeatedly  recognized  in 
this  court,  and  the  reasons  for  adhering  to  that  construction 
of  the  constitution  are  cogent  and  satisfactory."  I  think  too 
much  emphasis  can  hardly  be  placed  on  the  influence  of  those 
judges  who,  though  sometimes  in  the  minority,  at  other  times 
had  the  opportunity  to  introduce  their  own  opinions  when  de- 
livering the  opinion  of  the  court.  It  would  be  hard  to  deter- 
mine whether  the  general  assembly  or  the  court  dealt  in  the 
more  subtle  legal  technicalities  in  order  to  allow  special  legis- 
lation for  cities.  At  a  later  time  in  the  case  of  The  State  rs. 
Wall,2  the  results  of  this  policy  had  become  so  ridiculous  and 
palpably  inconsistent,  that  the  court  said  :  "  Grave  doubts  may 
well  be  entertained  as  to  the  constitutionality  of  this  method 
of  classifying  cities  for  the  purpose  of  general  legislation.  But 
it  has  received  the  sanction  of  this  court  in  repeated  decisions 
heretofore  made."  The  discrepancy  of  these  remarks  and 
Judge  Okey's  opinion  that  municipal  corporations  might  not 
be  adjudged  corporate  bodies  in  the  meaning  of  the  constitu- 
tion, if  the  question  could  be  reopened  from  the  beginning, 
shows  the  opposite  tendencies  within  the  court  itself.  It  seems 
clear  that  in  its  vacillation  the  court  became  the  dupe  of  the 
legislature.  The  conservative  elements  secured  the  sanction 
of  the  court  for  the  system  of  classification,  while  it  was  yet 
semi-reasonable.  But  this  sanction  included  the  optional  fea- 
ture with  reference  to  advancement,  which  afterwards  operated 
so  cunningly  in  the  interests  of  special  legislation.  But  the 
court  having  set  its  seal  to  the  scheme,  could  only  regret  the 
caricature  of  a  legal  system  which  had  grown  up  with  its  sanc- 
tion. It  is  true  that  no  case  seems  to  have  yet  been  decided 
involving  the  constitutionality  of  a  legislative  act  conferring 
1  39  Ohio  St.,  653,  supra.  *  47  Ohio  St.,  499. 


407]  IN  MICHIGAN  AND  OHIO.  g^ 

powers  on  municipal  corporations  of  a  definite  population  at 
the  last  or  any  succeeding  census.  But  after  straining  the 
possibilities  to  their  utmost  to  show  that  some  other  city  be- 
sides Toledo  might  have  come  under  the  provisions  of  an  act 
referring  to  cities  of  the  first  class,  third  grade,  before  the  time 
required  for  its  provisions  to  be  carried  out,1  it  could  not  have 
decided  with  very  good  grace  that  it  would  be  impossible  for 
more  than  one  city  to  ever  have  a  population  of  just  6,046. 

V.  General  remarks. 

After  what  has  gone  before  it  is  needless  to  say  that  the 
constitution  of  1851  failed  to  do  away  with  special  municipal 
legislation.  To  any  one  reading  the  convention  debates  there 
can  be  no  doubt  that  Judge  Okey's  "  wish  was  father  to  the 
thought "  that  municipal  corporations  were  not  included  in  the 
section  prohibiting  special  grants  of  corporate  power.  From 
the  legal  point  of  view  the  results  of  the  Ohio  policy  have 
been  most  unfortunate,  introducing  a  habit  of  legal  technicality 
which  makes  legislation  a  mere  sophistical  display.  This 
study  has  often  seemed  to  me  more  appropriate  for  the  subject 
of  a  humorous  address  than  for  a  serious  discussion.2  But 
whether  we  consider  the  course  of  special  legislation  in  Ohio 
humorous  or  disgraceful,  it  is  necessary  to  keep  our  patience 
and  look  into  the  causes. 

It  is  often  argued  by  the  friends  of  special  legislation  that 
such  laws  are  necessary.  Granting  that  a  great  many  special 
laws  were  required  during  the  forty  years  following  the  adop- 

1  State  v.  City  of  Toledo,  48  Ohio  St.,  112,  supra. 

"Section  two  of  an  act  passed  March  29,  1873,  reads :  "  That  an  act  entitled, 
'  An  Act  to  amend  section  one  of  an  act  entitled  an  act  to  repeal  an  act  entitled, 
an  act  supplementary  to  an  act  entitled  an  act  authorizing  the  appointment  of 
metropolitan  police  commissioners  in  cities  of  the  first  class  with  a  population  of 
less  than  loo.coo  inhabitants  at  the  last  federal  census,  passed  April  5,  1866, 
passed  March  29,  1867,  and  to  provide  a  police  for  cities  of  the  second  class, 
passed  April  16,  1868,'  passed  May  6,  1869,  be  and  the  same  is  hereby  repealed." 
O.  L.,  70  v.  84. 


90  MUNICIPAL  GOVERNMENT  [408 

tion  of  the  constitution  of  1851,  in  order  to  allow  the  cities  of 
Ohio  to  attain  their  best  development,  it  may  yet  be  success- 
fully contended  that  the  vast  majority  of  the  special  laws  actu- 
ally passed  during  that  period  could  have  been  easily  dispensed 
with  under  a  careful  system  of  general  legislation.  Either 
local  self-government  is  a  failure,  or  the  popularly  elected  au- 
thorities of  villages  and  cities  can  be  trusted  with  the  power 
to  transfer  moneys  from  one  municipal  fund  to  another  in  case 
of  need,  without  a  special  act  of  the  legislature.  If  this  de- 
tailed special  legislation  is  really  a  necessary  thing,  it  seems 
strange  that  the  Ohio  convention  of  1873  and  1874,  after 
twenty  years'  experience,  should  have  recommended  to  the 
people  much  more  stringent  provisions  limiting  the  power  of 
the  legislature  than  were  provided  in  the  constitution  of  1851. 
Perhaps  we  may  say  that  the  most  important  forces  which 
led  to  the  peculiar  development  of  Ohio  legislation  were  these 
two:  distrust  of  municipal  authorities  in  financial  matters,  and 
the  desire  to  allow  each  community  to  do  as  it  pleased  in  the 
management  of  its  local  affairs  if  it  would  only  ask  for  permis- 
sion. The  result  of  the  former  of  these  forces  was  the  very 
carefully  defined  and  limited  powers  of  borrowing  money  and 
levying  taxes  granted  in  the  general  municipal  acts.  The  re- 
sult of  the  latter  force,  was  the  varied  legislation  granted  for 
the  asking  to  particular  localities  according  to  their  individual 
whims.  Some  village  wanted  to  sink  natural  gas  wells,  a  city 
wanted  to  build  a  railroad  or  car  shops,  or  to  aid  manufactur- 
ing enterprises,  or  the  people  of  some  locality  wanted  two 
chambers  in  their  city  council,  to  defend  them  against  the  one 
chamber  that  these  same  people  had  elected.  In  laws  as  well 
as  in  Convention  debates,  we  find  everywhere  the  evidence  of 
unlimited  confidence  in  the  people  themselves  and  their  de- 
sires, but  great  distrust  for  the  local  authorities  elected  by  the 
people.  The  legislature  granted  the  localities  what  they 
wanted,  but  made  them  ask  for  it. 


CHAPTER  VI. 

THE  DEVELOPMENT  OF  DETROIT'S  CHARTER. 

A  CHRONOLOGICAL  outline  of  Detroit's  legislative  history 
would  give  one  of  the  best  possible  illustrations  of  the  way  a 
city  government  is  built  up  bit  by  bit  from  year  to  year  under 
the  system  of  special  legislation.  The  trouble  with  such  a 
sketch  is  that  it  becomes  wearisome.  It  is  not  easy  to  show 
the  true  course  of  development,  and  at  the  same  time  arrange 
the  materials  of  charter  history  in  any  logical  order.  For 
special  legislation,  even  when  left  to  its  natural  course  accord- 
ing to  the  growing  desires  and  needs  of  a  given  locality,  es- 
pecially where  the  locality  itself  is  going  through  a  course  of 
rapid  development,  does  not  readily  yield  itself  to  a  scientific 
analysis.  But  when  political  forces  also  come  in  to  change 
the  natural  course  of  charter  evolution,  the  chief  characteristic 
of  special  legislation  becomes  its  lack  of  logical  sequence. 
The  history  of  Detroit  is  no  exception  to  this  rule.  It  would 
be  very  hard,  indeed,  to  find  any  clear-cut  and  satisfactory 
division  of  Detroit  history  into  periods,  from  the  point  of  view 
of  local  government  alone.  But  as  our  main  object  in  this 
study  is  to  find  out  something  of  the  relations  existing  be- 
tween the  city  and  the  state,  we  may  take  advantage  of  certain 
fairly  well-marked  periods  in  the  political  history  of  Michigan 
and  Detroit,  in  their  relations  to  each  other.  These  periods 
do,  as  a  matter  of  fact,  correspond  roughly  with  different  ten- 
dencies in  the  local  government. 

The  first  period  down  to  1813,  when  Lewis  Cass  became 
Governor  of  Michigan  Territory,  may  be  styled  the  military 
period.  Detroit  was  first  of  all  a  military  and  trading  post, 
409]  91 


92 


MUNICIPAL  GOVERNMENT 


for  the  possession  of  which  white  nations  fought  with  each 
other  and  the  Indians.1  Its  civil  government  was  incidental. 
The  period  from  1813  to  1854  is  marked  by  the  dominance  of 
Lewis  Cass  and  the  Democratic  party  in  Michigan.  The  city 
and  the  state  were  in  political  accord,  and  the  form  of  local 
government  approached  the  "  council  system."  But  in  1854 
the  triumph  of  the  new  Republican  party  in  the  state,  while 
the  city  remained  Democratic,  opened  the  way  for  political  in- 
terference in  the  municipal  legislation  and  administration. 
About  the  same  time  the  "  board  system"  began  to  be  intro- 
duced into  the  city  charter.  This  system  appeared  in  all  parts 
of  the  country  at  about  that  time,  and  proved  itself  to  be  the 
form  of  city  government  most  adapted  to  the  demands  of  leg- 
islative interference  in  local  affairs  for  political  purposes. 
Hence,  although  it  is  not  at  all  likely  that  the  system  was  first 
introduced  into  the  Detroit  charter  for  political  reasons,  it  is 
quite  certain  that  its  later  development  was  intensified  by  its 
inherent  adaptability  to  the  partisan  ends  of  legislatures 
unfriendly  toward  the  politics  of  the  city.  In  the  year  1889,  a 
political  revolution  in  Detroit  brought  the  city  and  the  state 
once  more  into  political  accord  ;  and  while  this  fact  has  not 
seemed  to  have  a  very  marked  influence  on  charter  legislation,. 
there  has  been  a  slight  tendency  to  increase  the  powers  of  the 
mayor  in  accordance  with  the  general  movement  throughout 
the  country  during  recent  years.  But  the  most  important 
characteristic  of  this  last  period  of  Detroit's  history,  is  the 
strong  development  of  the  civic  spirit  and  the  increased  activ- 
ity of  the  administration  under  the  personal  leadership  of 
Mayor  Pingree. 

1  See  Historical  and  Scientific  Sketches  of  Michigan,  p.  17,  where  Lewis  Cass 
says,  speaking  of  Detroit,  "  How  numerous  and  diversified  are  the  incidents,  com- 
pressed  within  the  period  of  its  existence  !  No  place  in  the  United  States  presents 
such  a  series  of  events  interesting  in  themselves  and  permanently  affecting,  as  they 
occurred,  its  progress  and  prosperity.  Five  times  has  its  flag  changed,  three  dif- 
ferent sovereignties  have  claimed  its  allegiance,  and  since  it  has  been  held  by  the 
United  States,  its  government  has  been  thrice  transferred  ;  twice  it  has  been  be- 
seiged  by  the  Indians,  once  captured  in  war,  and  once  burned  to  the  ground." 


4i  i ]  IN  MICHIGAN  AND  OHIO.  93 

1.  The  military  period,  1610  to  iSij. 

As  early  as  1610,  Frenchmen  from  Montreal  visited  the 
present  site  of  Detroit,  but  the  first  permanent  settlement  was 
made  by  Cadillac  in  1701.  During  all  of  the  eighteenth  cen- 
tury Detroit  remained  a  military  post,  the  houses  of  the  settle- 
ment being  crowded  together  inside  the  palisades  for  defense 
from  the  Indians.  But  although  the  population  was  very 
small,  the  post  was  the  centre  for  an  immense  fur  trade,  and 
hence  of  the  greatest  commercial  importance.  Upon  the  cap- 
ture of  Montreal  in  1760,  the  whole  of  the  northwest  passed 
into  English  hands.  After  that  time  a  few  Englishmen  came 
to  Detroit  to  live,  and  the  American  immigration  set  in  when 
the  post  was  occupied  in  1796  by  the  United  States  govern- 
ment under  Jay's  treaty. 

In  January,  1802,  the  settlement  was  incorporated  as  a  town 
by  the  act  of  the  governor  and  legislature  of  the  Northwest 
Territory,  which  assembled  at  Chillicothe.1  The  officers  to  be 
chosen  for  the  town  were  five  trustees,  a  secretary,  an  assessor, 
a  collector,  and  a  marshal.  Soon  after,  upon  the  creation  of 
the  State  of  Ohio,  Detroit  was  transferred  to  Indiana  Terri- 
tory, of  which  it  remained  a  part  till  1805,  when  the  territory 
of  Michigan  was  formed.  On  June  1 1  of  this  year,  Detroit 
was  burned  to  the  ground.  Very  soon  afterwards  the  judges 
and  governor  of  the  new  territory  arrived,  and  took  matters 
into  their  own  hands.  They  were  authorized  by  act  of  Con- 
gress to  adopt  laws  from  the  statutes  of  any  of  the  old  states, 
and  hence  for  the  next  few  years  all  the  acts  of  Governor  Hull 
and  Judges  Woodward  and  Bates  were  excerpts  from  the 
statute-books  of  New  York,  Massachusetts,  Virginia,  etc.  The 
local  acts  referring  to  the  government  of  Detroit  were  taken 
chiefly  from  Maryland.  On  September  13,  1806,  Detroit  was 
incorporated  as  a  city.2  There  were  to  be  a  mayor  appointed 

1  Farmer's  History  of  Detroit  and  Michigan,  p.  133. 
*  Mich.  Terr.  Laws,  4  v.  3-6. 


94 


MUNICIPAL  GOVERNMENT 


by  the  governor,  and  a  city  council  composed  of  two  cham- 
bers of  three  members  each,  all  elected  by  the  people.  The 
mayor  was  given  an  absolute  veto  on  all  laws  passed  by  the 
council,  and  was  to  appoint  all  city  officers  except  the  register, 
who  was  to  be  named  by  the  governor.  The  powers  given  to 
the  city  council,  their  exercise  being  always  liable  to  the 
mayor's  veto,  were  very  extensive.  The  council  could  pro- 
vide, among  other  things,  for  sanitation,  police,  drainage, 
lighting,  repair  of  streets  and  bridges,  vehicle  licenses,  fire 
companies,  markets,  weights  and  measures,  and  education. 
They  could  pass  all  laws  necessary  for  carrying  out  these 
powers,  and  could  levy  and  collect  taxes.  To  illustrate  the 
minuteness  of  the  enumeration  of  their  functions,  they  were 
authorized  to  fix  and  regulate  the  size  of  bricks  to  be  used  in 
the  city,  to  regulate  the  measurement  of  lumber,  coal  and 
wood,  to  sink  wells  and  erect  pumps,  and  to  regulate  the 
weight  and  quality  of  bread.  This  would  have  been  local 
self-government  with  a  vengeance,  except  for  the  absolute  veto 
power  of  the  mayor  appointed  by  the  governor. 

But  the  system  appears  to  have  been  a  failure.  The  gover- 
nor and  judges  quarreled  with  each  other,  and  governed  the 
people  in  an  arbitrary  fashion.  On  February  24,  1809,*  Gov. 
Hull,  in  the  absence  of  the  judges,  repealed  the  law  of  1806; 
but  on  the  return  of  the  judges  an  act  was  passed  September 
1  6,  i8io,2  repealing  all  laws  made  for  Michigan  prior  to  the 
establishment  of  the  territory  in  1805,  and  also  all  laws  enacted 
by  Governor  Hull  in  the  absence  of  the  judges  between  June 
2,  1807  and  September  I,  1810.  Hence  the  act  of  1802  incor- 
porating Detroit  as  a  town  was  clearly  repealed,  and  the  in- 
corporation act  of  1806  was  presumably  revived,  though  it  has 
now  been  statute  law  in  Michigan  for  many  years  that  the  re- 
peal of  a  repealing  act  does  not  revive  the  original  measure.3 
But  however  it  may  have  been  legally,  the  city  of  Detroit  had 

1  Mich.  T.  L..  4v.  83.  *  Ibid.,  I  v.  900. 

*  Howell's  Annotated  Statutes,  sec.  3. 


IN  MICHIGAN  AND  OHIO. 


95 


little  government  except  the  personal  government  of  the  ter- 
ritorial authorities,  until  the  new  charter  was  granted  under 
Governor  Cass  in  1815.  It  is  hardly  necessary  to  mention  the 
fact  that  Detroit  was  in  the  hands  of  the  British  military  for 
about  a  year  after  its  surrender  by  Governor  Hull  in  August, 
1812. 

II.  The  council  period,  i8ij  to  1854.. 

In  the  year  1813  Gen.  Lewis  Cass,  a  man  of  New  England 
birth  and  training,  succeeded  to  the  governorship  of  the  Ter- 
ritory of  Michigan,  in  place  of  Hull,  who  had  been  disgraced 
by  his  surrender  of  Detroit  to  the  British.  Governor  Cass 
held  his  position  until  1831,  and  during  that  period  did  his 
best  to  encourage  the  growth  of  local  self-government  among 
the  people.1  After  Michigan  became  a  state  in  1837,  although 
Cass'  public  activity  was  transferred  to  the  field  of  national 
politics,  his  influence  in  his  state  was  almost  supreme  until  the 
new  Republican  party  came  to  power  in  1854.  During  this 
whole  period,  the  state  and  the  city  being  of  the  same  politi- 
cal faith,  Detroit  legislation  seems  not  to  have  been  influenced 
by  partisan  motives.  The  system  of  city  government  centered 
in  the  council,  and  the  detailed  changes  from  year  to  year 
were  made  in  accordance  with  the  natural  growth  of  local 
needs.  During  most  of  this  period,  that  is,  until  '1847,  Detroit 
was  the  seat  of  the  State  government.  At  that  time  the  cap- 
ital was  removed  to  Lansing.  Let  us  proceed  to  take  up  in 
detail  the  development  of  the  city  charter  under  these  circum- 
stances. 

The  Charter  of  1815.  On  October  24,  1815,  Detroit  was 
reincorporated  as  a  city  by  the  new  territorial  authorities.3 
The  original  act  of  1802  was  revived  and  amended.  The  old 
officers  were  retained,  namely,  five  trustees,  secretary,  assessor, 
collector  and  marshal.  All  these  were  to  be  elected  annually 

1  Howard,  Local  Const.  Hist,  oj  the  U.  S.,  p.  154. 
1  Mich.  T.  L.,  I  v.  534-541. 


<^6  MUNICIPAL  GOVERNMENT 

from  residents  by  the  freeholders,  the  householders  paying  an 
annual  rental  of  $40.00,  and  such  other  residents  as  should  be 
given  the  freedom  of  the  corporation  by  majority  vote  of  the 
electors.  The  board  of  trustees  were  given  general  powers  to 
establish  laws  and  ordinances  for  the  health,  safety,  cleanliness, 
convenience  and  good  government  of  the  city.  All  laws,  or- 
dinances and  regulations  of  the  trustees  were  to  remain  in 
force  until  the  next  annual  meeting  of  the  electors,  when  they 
were  to  be  submitted  to  vote,  and  if  rejected  by  a  majority  of 
the  citizens  present,  were  to  be  null  and  void.  All  taxes  were 
also  to  be  voted  by  the  annual  meeting.  The  trustees  could 
fill  vacancies  in  elective  offices,  appoint  subordinate  officers, 
call  special  meetings  of  the  citizens  for  voting  taxes,  and 
license  and  regulate  taverns  and  other  public  houses  of  entertain- 
ment. The  secretary  of  the  board  of  trustees  was  required  to 
keep  a  legible  copy  of  all  laws,  ordinances,  etc.,  in  a  book  open 
to  the  public  inspection.  Six  years  later,  1821,  a  supervisor 
of  roads  and  highways  was  added  to  the  list  of  city  officers, 
and  the  voting  qualifications  were  amended.1  Henceforth  all 
free  white  male  citizens  of  the  United  States  who  had  lived  in 
the  city  for  a  year  and  had  paid  taxes  were  to  have  the  right 
of  suffrage. 

The  Charter  of  1824..  By  act  of  August  5,  1824,  Detroit  was 
granted  a  new  charter.2  The  elective  officers  were  to  be  mayor, 
five  aldermen,  marshal,  supervisor,  assessor,  collector  and  three 
constables,  chosen  annually.  The  mayor  and  aldermen  to- 
gether were  to  appoint  a  recorder,  a  treasurer  and  a  clerk. 
Refusal  or  neglect  to  serve  in  any  of  the  elective  offices  might 
be  punished  by  a  fine  of  not  more  than  $25.00.  The  mayor, 
recorder  and  aldermen  were  to  constitute  the  common  council. 
No  business  could  be  transacted  with  both  mayor  and  recorder 
absent.  The  recorder  was  to  be  the  vice-mayor  of  the  city. 
Taxes  were  to  be  voted  by  the  people  on  recommendation  of 
the  council,  but  the  amount  to  be  levied  in  any  one  year  was 

1  Mich.  T.  L.,  I  v.  314.  J  Ibid.,  2  v.  221-230. 


415]  IN  MICHIGAN  AND  OHIO.  97 

not  to  exceed  one  fourth  of  one  per  cent,  of  the  assessed  valu- 
ation of  all  real  and  personal  property.  The  mayor's  court 
was  established,  to  consist  of  any  three  or  more  members  of 
the  common  council,  always  including  either  the  mayor  or  re- 
corder. This  court  was  to  be  a  court  of  record,  and  to  have 
full  jurisdiction  in  cases  of  offenses  against  the  city  laws  or 
ordinances. 

Changes  in  the  council  and  executive  offices.  The  general 
form  of  organization  provided  by  the  charter  of  1824  lasted  for 
more  than  thirty  years,  although  a  new  charter  was  granted 
in  1827,*  and  numerous  amendments  were  passed  from  year  to 
year.  The  council  maintained  its  position  as  the  central  organ 
of  the  city  government.  Its  composition  was  changed  in  1839, 
when  the  city  was  divided  into  wards,  each  of  which  was  re- 
quired to  elect  two  aldermen,  a  constable  and  an  assessor.2 
The  mayor  retained  his  position  as  presiding  officer  of  the 
council,  but  had  no  appointive  power.  When  the  Board  of 
Education  was  organized  in  1842,3  the  mayor  became  its 
president,  but  kept  that  position  for  only  four  years.4  In  1846 
he  was  forbidden  to  preside  over  the  mayor's  court  except  in 
the  absence  of  the  recorder,5  but  the  act  of  1846  was  repealed 
a  year  later.6  The  recorder  lost  his  vote  in  the  council  in 
1839.  During  this  whole  period  the  list  of  elective  officers 
was  long.  By  an  act  of  1849  tne  charter  officers  to  be  elected 
annually  on  general  ticket  were  to  be:  recorder,  attorney, 
clerk,  treasurer,  marshal,  superintendent  of  water- works,  phy- 
sician, director  of  the  poor,  sexton,  clerk  for  each  public 
market,  surveyor/  three  inspectors  of  fire-wood,  and  two 
weigh-masters.7  In  1827  the  collector  had  been  made  an  ap- 
pointive officer,  and  a  definite  provision  had  been  made  that 
all  ministerial  officers  should  be  appointed  by  the  common 

1  Mich.  T.  L.,  2  v.  339-354.  *  Mich.  Laws,  1839,  pp.  31-35. 

8  Ibid.,  1842,  pp.  112-116.  *  Ibid.,  1846,  p.  101. 

*  Ibid.,  pp.  19-21.  •  Ibid.,  1847,  p.  96. 
1  Ibid.,  1849,  pp.  31-36. 


98 


MUNICIPAL  GOVERNMENT 


council,  and  be  removable  at  pleasure.1  A  few  years  later  the 
constables  were  made  subject  to  removal  by  the  council  for 
cause.2  Holding  more  than  one  office  had  been  forbidden  by 
the  charter  of  1827,  but  this  provision  was  repealed  in  1844, 
and  at  the  same  time  the  council  was  authorized  to  appoint  a 
city  auditor  to  hold  office  for  three  years,  subject  to  removal 
only  by  two-thirds  vote  of  the  entire  council.3  By  act  of  1849 
the  council's  power  of  removal  over  ministerial  officers  was 
greatly  diminished,  as  it  could  henceforth  be  exercised  only 
by  two-thirds  vote  after  showing  cause  and  giving  a  hearing.4 

Elections.  In  1837  the  required  city  residence  for  electors 
was  reduced  to  six  months,  and  a  board  of  five  election  in- 
spectors was  provided,  to  be  chosen  by  popular  vote,  and  to 
serve  at  all  city  elections.5  Two  years  later,  with  the  division 
of  the  city  into  wards,  the  election  inspectors  were  to  be  the 
two  aldermen  and  the  assessor  chosen  in  each  particular  ward.6 
A  heavy  penalty  was  attached  to  "  repeating."  The  term  of 
ward  residence  required  of  electors  was  fixed  at  ten  days,  but 
was  increased  to  thirty  in  1841.7 

Financial  affairs.  The  finances  of  the  city  were  not  very 
well  managed  during  this  early  period.  In  1827  the  council 
was  authorized  to  issue  due  bills  for  payment  of  debts,  which 
were  to  be  receivable  at  par  for  taxes  and  other  payments  to 
the  city,  and  were  to  be  transferable  without  endorsement. 
The  amount  in  circulation  at  any  one  time  was  not  to  exceed 
$5,ooo.8  This  issue  by  the  city  of  fiat  money  was  not  alto- 
gether successful.  The  limit  of  issue  was  disregarded,  and, 
although  the  right  to  issue  was  taken  away  entirely  in  1842,9 
the  last  of  the  outstanding  bills  were  not  redeemed  till  i8/i.10 

'Mich.  T.  L.,  2  v.  570-571.  ''•Ibid.,  3  v.  1422. 

8  Mich.  Laws,  1844,  p.  101.  *  Ibid.,  1849,  pp.  32-36. 

5  Ibid.,  1837,  p.  199.  6  Ibid.,  1839,  pp.  31-35. 

T  Ibid.,  1841,  pp.  192-201.  8Mich.  T.  L.f  2v.  570. 

'Mich.  Laws,  1842,  p.  28. 

10  Farmer's  History  of  Detroit  and  Mich.,  pp.  152-155. 


417]  IN  MICHIGAN  AND  OHIO.  99 

In  1835  the  common  council  was  authorized  to  make  its  first 
loan,  if  the  consent  of  the  citizens'  meeting  could  be  obtained.1 
The  amount  of  the  loan  was  to  be  $50,000,  payable  in  thirty 
years,  and  bearing  interest  at  six  per  cent.  The  annual  tax 
limit  was  raised  to  one-half  of  one  percent,  in  i84i.2  Begin- 
ning with  1845,3  almost  every  legislature  authorized  a  special 
tax  levy  of  $15,000  or  $20,000.  In  1851  provision  was  made 
for  a  sinking  fund.4  The  council  was  authorized  to  levy  a 
special  tax  to  cover  current  interest  on  the  debt,  and  $5,000  in 
addition,  which,  together  with  all  surplus  saved  from  the  gen- 
eral taxes,  was  to  be  appropriated  to  the  sinking  fund. 

Assessments.  One  of  the  most  striking  evidences  of  the  dif- 
ficulty of  getting  a  just  taxable  valuation  of  property,  is  to  be 
found  in  the  frequent  changes  in  the  method  of  assessment. 
Until  1839  assessments  were  made  by  one  elected  assessor, 
but  at  this  time  each  ward  was  required  to  elect  its  own  as- 
sessor.5 The  assessors  of  the  wards  were  then  to  sit  together 
as  a  board  of  equalization  for  the  entire  city  after  their  several 
assessment  rolls  had  been  left  open  to  public  inspection.  This 
plan  seems  to  have  been  unsatisfactory,  for  in  1846  the  city 
was  divided  into  three  districts,  each  comprising  two  wards, 
and  the  two  ward  assessors  in  each  district  were  required  to 
make  their  assessments  together.6  But  two  years  later  it  was 
decided  that  one  assessor  should  be  chosen  in  each  district 
and  the  three  should  make  out  the  rolls  for  the  entire  city 
jointly.7  The  very  next  year,  1849,  the  old  plan  of  assessors 
elected  by  wards  was  revived,8  and  in  1850  the  three-district 
plan  was  tried  again.9  One  assessor  was  to  be  elected  in  each 
district  for  a  term  of  three  years,  and  the  assessment  for  the 
whole  city  was  to  be  made  as  by  the  act  of  1848.  This  method 
was  not  changed  till  1855. 

1  Mich.  T.  L.,  3  v.  1422.  *  Mich.  Laws,  1841,  pp.  192-201. 
*  Ibid.,  1845,  p.  25.  *  Ibid.,  1851,  p.  41.  &  Ibid.,  1839,  pp.  31-35. 
8 Ibid.,  1846,  pp.  19-21.  ''Ibid.,  1848,  pp.  40-45. 

8  Ibid.,  1849,  pp.  32-36.  •  Ibid.,  1850,  pp.  9-12. 


IOQ  MUNICIPAL  GOVERNMENT 

The  schools.  Education  was  the  first  of  the  municipal  func- 
tions put  into  the  hands  of  a  separate  board.  The  first  act 
providing  for  common  schools  in  Detroit  was  passed  in  1833.* 
A  school  committee  was  to  be  elected,  consisting  of  eighteen 
members,  one -third  of  whom  were  to  retire  each  year.  Teach- 
ers' salaries  were  to  be  paid  by  tuition  fees,  special  provision 
being  made  for  indigent  children.  It  was  not  until  February, 
1842,  that  free  schools  were  established  for  all  children  be- 
tween the  ages  of  five  and  twenty  years.2  At  that  time  the 
city  was  constituted  a  single  school  district  with  a  board  of 
education  consisting  of  the  mayor,  recorder,  and  two  school 
inspectors,  elected  by  each  ward.  Refusal  to  serve  could  be 
punished  by  a  ten  dollars  fine.  For  the  support  of  the  schools 
the  common  council  was  authorized  to  levy  a  tax,  the  whole 
amount  not  to  exceed  one  dollar  for  every  child  of  school  age. 
In  1 846  the  mayor  ceased  to  be  president  of  the  board,  his 
place  being  taken  by  an  elected  member.3  The  legislature  of 
1847  authorized  the  board  to  borrow  $5,000  with  the  consent 
of  the  freeholders,  but  a  sinking  fund  was  provided  to  extin- 
guish the  debt  within  not  more  than  twenty  years.4  It  was 
specifically  declared  by  statute  that  the  offices  of  member  of 
the  board  of  education  and  member  of  the  common  council 
should  not  be  incompatible.5 

Corporate  functions.  Of  course  it  was  necessary  that  with 
the  growth  of  the  city  the  functions  of  the  government  shoulp 
gradually  expand.  In  the  charter  of  1827  the  council  was  au- 
thorized to  contract  for  water  supply,  and  also  to  provide  for  the 
relief  of  the  poor.  The  volunteer  fire  service  was  encouraged 
by  exempting  firemen  from  jury  and  militia  duties.  The  fire- 
men were  to  organize  into  companies,  make  their  own  rules, 
elect  officers,  and  hold  meetings  at  least  once  a  month  to  test 
their  implements.  The  law  went  on  to  say,  "  Upon  any  alarm 

1  Mich.  T.  L.,  3  v.  1238-1242.  *Mich.  Laws,  1842,  pp.  1 12-116. 

3  Ibid.,  1846,  p.  ioi.  *  Ibid.,  1847,  P-  5°-  6  •#*</•»  '847,  p.   96. 


4IO/J  IN  MICHIGAN  AND  OHIO.  IOI 

or  breaking  out  of  any  fire  within  said  city,  each  member  of  a 
fire  company  shall  forthwith  repair  to  the  engine  house,  and 
from  thence  proceed,  without  delay,  with  their  fire  engine 
and  other  implements,  to  the  place  of  such  fire."  In  1841  the 
council  was  given  full  power  to  enact  all  proper  ordinances 
"  relative  to  the  control,  regulation,  protection  and  use  of 
drains  and  sewers."1  It  was  also  invested  with  all  the  powers 
and  functions  of  a  township  board,*  and  authorized  to  erect  a 
city  jail. 

The  water  commissioners.  This  gradual  expansion  of  the 
corporate  functions  of  the  city  resulted  in  the  elaboration  of 
the  governmental  machinery.  The  system  of  executive  boards 
did  not  reach  its  height  until  after  1870,  but  as  early  as  1853 
an  act  was  passed  establishing  the  board  of  water  commission- 
ers.3 This  board  was  to  consist  of  five  members,  one  to  retire 
each  year.  The  first  commissioners  were  named  in  the  act 
itself,4  but  their  successors  were  to  be  appointed  by  the  com- 
mon council.  The  board  was  authorized  to  borrow  $250,000 
on  the  credit  of  the  city  at  a  rate  of  interest  not  exceeding 
eight  per  cent.  Members  of  the  board  could  not  be  interested 
in  any  city  contracts,  and  were  allowed  no  compensation,  but 
could  appoint  salaried  officers  for  the  administration  of  the 
water  works.  Surplus  revenues  were  to  be  invested  in  safe 
stocks,  and  used  in  paying  off  the  bonds  as  they  fell  due. 
Any  deficiency  in  revenue  was  to  be  supplied  by  a  special 
water  tax. 

1Mich.  Laws,  1841,  pp.  192-201. 

2  Ever  since  its  incorporation  Detroit  has  had  only  a  double  system  of  local  gov- 
ernment. The  city  was  never  included  in  any  township,  but  has  had  its  own  rep- 
resentatives on  the  county  board  of  supervisors  since  the  introduction  of  the  New 
York  township-county  system  in  1827. 

'Mich.  Laws,  1853,  pp.  180-187. 

*  These  men  had  been  appointed  water  commissioners  by  ordinance  of  the  coun- 
cil during  the  previous  year,  so  that  they  were  really  local  appointees. 


LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
SAINTA  RAH  It  A  i<i 


IQ2  MUNICIPAL  GOVERNMENT  [420 

III.  The  period  of  boards,  1854  to  1889. 

As  already  stated,  a  revolution  in  Michigan  politics  took 
place  in  1854,  which  brought  about  a  much  sharper  opposi- 
tion of  political  interests  of  the  city  and  the  state  than  had 
existed  before.  The  "  board  system"  of  city  government 
would  have  been  introduced,  doubtless,  even  in  the  absence  of 
these  different  interests,  but  the  fact  that  opposite  parties  were 
in  control  at  Detroit  and  Lansing  could  not  but  tend  to  aggra- 
vate the  evils  of  a  system,  bad  under  almost  any  conditions. 
The  direct  influence  of  party  politics  on  the  organization  of  the 
city  government  by  the  legislature  does  not  become  apparent 
until  1865,  when  the  Metropolitan  Police  Board  was  estab- 
lished. But  the  year  1855,  when  extensive  charter  amend- 
ments were  passed  leading  up  to  the  new  charter  of  1857, 
marks  the  advent  of  a  new  force  in  Detroit  legislation.  From 
that  time  on,  the  laws  provided  for  the  city  have  been  more 
drastic,  showing  an  increased  distrust  on  the  part  of  the  legis- 
lature, due,  no  doubt,  to  the  rapid  growth  of  the  city  and  the 
city  problem,  as  well  as  to  political  differences. 

The  legislation  of  1855.  The  first  important  changes  under 
the  new  state  regime  were  embodied  in  the  act  of  1855.*  The 
council  was  authorized  to  appoint  policemen  and  watchmen. 
It  was  provided  that  no  person  unable  to  read  and  write  the 
English  language  should  be  eligible  to  any  office  except 
those  of  scavenger  and  chimney-sweeper.  No  person  holding 
a  contract  for  any  public  work  was  to  be  eligible  to  the  coun- 
cil, and  any  contract  thereafter  made  in  which  a  councilman 
was  directly  or  indirectly  interested  should  be  null  and  void. 
The  method  of  assessment  was  changed  once  more.  The  new 
ward  assessors  were  to  make  out  their  rolls  without  consulta- 
tion, and  then  sit  together  as  a  board  of  review.  But  the  final 
review  and  correction  of  the  rolls  was  reserved  for  the  com- 
mon council.  A  service  tax  for  the  sewer  fund  was  authorized, 

1  Mich.  Laws,  1855,  pp.  209-227. 


42  I  ] 


IN  MICHIGAN  AND  OHIO. 


and  property  could  be  seized  and  sold  for  a  term  of  years  in 
default  of  payment  of  special  assessments.  The  creation  of  an 
almshouse  department,  to  include  an  almshouse  proper, 
houses  of  correction,  etc.,  was  authorized.1  Another  provis- 
ion of  the  act  of  1855  gave  the  council  unlimited  discretion  to 
require  of  any  officer,  elected  or  appointed,  new  and  additional 
bonds,  and  in  case  of  failure,  to  declare  the  office  vacant  and 
appoint  another  person  for  the  remainder  of  the  term.  Any 
officer  could  be  removed  by  a  majority  vote  of  the  members 
elected  to  the  council,  for  such  reasons  as  they  might  deem 
sufficient. 

The  Charter  of  1857.  Name.  A  new  charter  was  granted 
in  1857,*  much  more  elaborate  than  any  of  the  preceding  ones. 
The  change  in  the  name  of  the  corporation  shows  that  the 
American  city  was  escaping  from  the  traditions  of  the  English 
borough.  The  legal  title,  "The  Mayor,  Recorder,  Aldermen 
and  Freemen  of  the  City  of  Detroit,"  became  simply  the  "  City 
of  Detroit." 

The  council  and  executive  officers.  By  this  charter  the  mayor 
ceased  to  be  a  member  of  the  common  council,  and  that  body 
was  required  to  elect  its  president  from  its  own  membership. 
There  were  to  be  two  aldermen  from  each  ward,  as  before. 
Outside  of  the  council,  which  was  still  to  a  large  extent  the 

1  It  is  interesting  to  note  the  words  of  this  provision  :  "  Every  person  confined, 
supported,  maintained  or  relieved  in  said  department,  whose  age  and  health  will 
permit,  shall  be  employed  in  some  useful  labor,  and  the  officers  in  charge  thereof 
shall  use  their  best  endeavors  to  provide  for  all  persons  under   their  care,  such 
labor,  as  on  trial,  shall  be  found  to  suit  the  capacity  of  the  individual.     It  shall  be 
the  duty  of  the  officers  to  keep  and  employ  separate  and  apart  from  each  other  the 
paupers  and  criminals,  anil  as  far  as  possible  to  classify  the  latter,  so  that  the  novice 
in  crime  may  not  be  contaminated  by  the  evil  example  and  converse  of  the  more 
hardened  and  confirmed."     This  interesting  piece  of  legislation  was  omitted  from 
the   charter  of  1857.     It  was  rather  enlightened  for  prison  legislation  in  those 
days.     The  provision  of  which  it  formed  a  part  was  the  legal  beginning  of  what 
afterwards  became  the  Detroit  House  of  Correction,  with  Mr.  Z.  R.  Brockway,  of 
El  mini  fame,  at  its  head. 

2  Mich.  Laws,  1857,  pp.  73-154. 


104  MUNICIPAL  GOVERNMENT  [422 

central  body  of  the  administration,  eight  charter  officers  were 
to  be  chosen  by  the  city  at  large,  and  several  more  by  each 
ward.  The  general  official  term  for  elective  officers  was  fixed 
at  two  years.  The  comptroller,  who  had  taken  the  auditor's 
place  a  year  or  two  before,  was  to  be  appointed  by  the  council. 
A  new  executive  board  was  established.  It  was  to  consist  of 
three  sewer  commissioners  appointed  by  the  council  on  the 
mayor's  nomination,  to  serve  without  compensation  for  terms 
of  five  years.  To  this  new  board  was  given  the  appointment 
of  an  engineer,  with  whose  assistance  a  plan  was  to  be  drawn 
up  for  sewers  and  drains  in  the  entire  city. 

Qualifications  for  office.  Removal.  Very  careful  provisions 
were  made  to  prevent  official  corruption.  Defaulters,  of  course, 
were  ineligible  to  office,  and  the  old  educational  qualification 
was  continued.  Members  of  the  council  were  ineligible,  dur- 
ing their  terms  and  for  one  year  thereafter,  to  any  office  under 
the  charter  which  should  be  created  or  whose  emoluments 
should  be  increased  during  that  time.  Any  officer  becoming 
interested  in  any  contract  with  the  city  was  to  be  removed  by 
the  common  council,  and  be  deemed  guilty  of  corrupt  malfeas- 
ance in  office,  and  be  liable  to  a  fine  not  exceeding  $1000  or 
confinement  in  the  state's  prison  for  not  more  than  one  year, 
or  both  fine  and  imprisonment,  at  the  discretion  of  the  court. 
Any  person  offering  to  bribe  an  officer  in  any  way,  or  any 
officer  accepting  a  bribe,  was  to  be  liable  to  the  same  penalties. 
The  recorder  could  be  impeached  in  the  same  way  as  any  ju- 
dicial officer  of  the  state.  The  council  might  expel  any  one  of 
its  members  or  remove  the  comptroller  or  any  of  the  elective 
officers  (save  the  mayor  and  recorder)  for  corrupt  or  wilful 
malfeasance  or  misfeasance  in  office  or  for  willful  neglect  of 
official  duties,  by  a  two-thirds  vote  of  all  the  aldermen,  the  ac- 
cused officer  having  been  given  a  copy  of  the  charges  and  op- 
portunity for  defense.  In  each  case  the  charges,  and  the  votes 
of  the  councilmen,  were  to  be  entered  on  the  records.  The 
mayor  was  given  power  to  suspend  or  remove  the  marshal, 


423] 


IN  MICHIGAN  AND  OHIO. 


street  commissioners,  deputy  marshal,  constable,  overseers  of 
highways,  and  officers  of  the  police,  —  but  he  had  to  report  the 
removals  and  his  reasons  to  the  council.  That  body  could  re- 
move appointive  officers  by  a  majority  vote  of  all.  New  offic- 
ial bonds  might  be  demanded  of  any  officer  at  any  time  by  the 
common  council,  but  the  old  special  provision  for  declaring 
the  office  vacant  in  case  of  failure  to  meet  the  new  require- 
ments was  not  renewed.  Thus  what  might  have  resulted  in  the 
tyranny  of  the  council  over  the  city  officers  was  conditioned 
by  the  general  provisions  for  removal. 

Elections.  The  time  of  the  annual  charter  election  was 
changed  from  February  to  November,  so  as  to  come  at  the 
same  time  as  the  state  and  national  elections.  Each  ward  was 
constituted  an  election  district.  The  inspectors  of  elections 
were  to  be  the  two  aldermen  together  with  a  third  person 
chosen  by  viva  voce  vote  of  the  electors  present  at  the  opening 
of  the  polls.  The  voting  qualifications  were  made  to  conform 
with  those  provided  in  the  state  constitution.  Perjury  on 
challenge  of  one's  vote  was  made  punishable  by  a  fine  of 
$1,000,  or  five  years  at  hard  labor  in  the  state's  prison,  or 
both.  "  Repeating  "  was  to  be  punished  by  a  penalty  of  $500 
fine,  or  three  years  in  the  state's  prison,  or  both.  No  qualified 
voter  was  to  be  liable  to  arrest  on  civil  process  during  election 
day.. 

The  powers  and  duties  of  the  council.  The  legislative  powers 
of  the  corporation  were,  of  course,  vested  in  the  aldermen  as 
constituting  the  common  council,  but  the  mayor  was  given  the 
usual  veto  power  subject  to  a  two  thirds  vote.  Appointments 
to  and  removals  from  office  and  resolutions  fixing  salaries 
were  not,  however,  subject  to  the  mayor's  veto.  The  council 
meetings  were  to  be  public,  its  proceedings  published  in  a 
daily  newspaper,  and  its  records  kept  open  to  public  inspec- 
tion at  reasonable  times.  No  ordinance  and  no  resolution  im- 
posing taxes  and  incurring  liability  could  be  passed  at  the 
same  meeting  at  which  they  were  presented,  unless  by  unani- 


IO6  MUNICIPAL  GOVERNMENT  [424 

mous  consent  or  at  a  special  meeting  called  for  the  purpose. 
No  alderman  could  vote  on  any  question  in  which  he  was 
personally  interested.  All  others  present  were  required  to 
vote,  and  in  case  of  tie  the  proposition  was  to  be  lost.  All 
appointments  to  office  by  the  council  were  to  be  made  by  ma- 
jority vote  of  all  aldermen  elected.  The  president  of  the 
council  was  authorized  to  appoint  such  standing  committees 
as  the  council  should  direct.  Chairmen  of  committees  and 
members  of  city  boards  were  given  power  to  administer  oaths 
and  summon  witnesses.  No  officer's  salary  could  be  de- 
creased during  his  incumbency,  nor  increased  save  by  two- 
thirds  vote  of  the  council.  The  common  council  was  given 
power — "  to  prohibit  and  prevent  any  riot,  rout,  disorderly 
noise,  disturbance  or  assemblage,  or  the  crying  of  any  goods 
in  the  streets,  or  elsewhere  in  the  city;"  to  prevent  indecent 
exhibitions;  to  prohibit  and  remove  nuisances  ;  to  establish  a 
board  of  health  ;  to  prohibit  and  prevent  the  erection  of  dan- 
gerous buildings  within  a  fixed  limit ;  to  suppress  houses  of 
ill-fame  and  assignation  ;  to  prohibit,  restrain  or  prevent  gam- 
ing for  money,  and  all  kinds  of  lotteries ;  to  license  and  regu- 
late saloons  (if  made  lawful  by  the  state),  hotels,  butcher 
shops,  public  exhibitions,  bath  houses,  etc.;  to  establish  a 
system  of  police;  to  appoint  inspectors,  measures,  etc.;  to  pro- 
vide for  the  census ;  to  establish  almshouses,  jails,  etc.;  to  as- 
sess, levy  and  collect  corporation  taxes,  etc.,  etc. 

Revenue,  finance  and  contracts.  The  revenues  and  moneys 
of  the  city  were  to  be  distributed  among  thirteen  funds  named 
in  the  charter,  and  such  other  funds  as  might  be  constituted  by 
the  common  council.  The  funds  named  were  these:  (i)  Gen- 
eral fund,  (2)  contingent  fund,  (3)  interest  fund,  (4)  sinking 
fund,  (5)  fire  department  fund,  (6)  poor  fund,  (7)  general  road 
fund,  (8)  district  road  fund,  (9)  sewer  fund,  (10)  street  opening 
fund,  (i  i )  street  paving  fund,  (12)  public  building  fund,  and 
(13)  recorder's  court  fund.  For  funds  numbered  one,  two,  five, 
six,  seven,  and  thirteen,  the  council  could  levy  and  assess  gen- 


425]  IN  MICHIGAN  AND   OHIO. 

eral  taxes  not  exceeding  one  per  cent,  on  the  total  property 
valuation.  Special  provisions  were  made  for  the  other  funds, 
and  the  city  budget  was  to  be  presented  to  the  citizens'  meeting 
for  their  approval,  after  the  estimates  for  the  ensuing  year  had 
been  sent  in  by  the  comptroller  and  revised  by  the  council. 
$30,000  a  year  might  be  levied  for  the  sewer  fund.  The  coun- 
cil was  required  to  levy  a  tax  to  meet  current  interest  charges, 
and  also  to  provide  between  $5,000  and  $10,000  a  year  for  the 
sinking  fund.  Special  assessments  could  be  levied  for  the 
sewer  fund,  and  also  for  the  street  paving  fund,  the  amount  for 
the  latter  not  to  exceed  $50,000  in  a  single  year.  For  the 
public  building  fund,  bonds  could  be  issued  not  to  exceed 
$300,000  in  amount.  The  bonds  had  to  run  at  least  twenty 
years,  bear  no  higher  than  seven  per  cent,  interest,  and  not  be 
sold  below  par.  All  contracts  worth  $200  or  more  were  to  be 
let  only  to  the  lowest  responsible  bidder.  The  council  could 
not  incur  debt  except  as  provided  in  the  charter,  but  could 
authorize  the  comptroller  to  make  a  temporary  loan  to  meet 
current  expenses  in  anticipation  of  the  annual  revenue.  No 
warrant  could  be  drawn  on  the  treasury  unless  there  was  money 
for  the  purpose  named  in  the  warrant.  All  warrants  required 
the  signature  of  the  comptroller,  and  the  approval  or  authori- 
zation of  the  common  council  in  pursuance  of  law.  Contracts 
in  which  city  officials  were  interested  were  to  be  void,  as 
before.  At  the  end  of  each  fiscal  year  the  comptroller  was 
required  to  make  a  complete  and  detailed  statement  of  the 
financial  condition  of  the  city,  to  be  published  in  two  news- 
papers. Such  general  information  was  to  be  given  in  addition 
as  would  be  necessary  for  a  general  understanding  of  the 
pecuniary  resources  and  liabilities  of  the  city  and  of  the  con- 
dition of  each  fund,  together  with  such  recommendations  as 
he  deemed  advisable.  Any  officer  or  board  could  be  required 
to  make  estimates  for  the  current  or  ensuing  year,  and  give 
accounts  for  any  past  year  at  any  time.  The  mayor,  comp- 
troller and  chairman  of  the  ways  and  means  committee  were 


I0g  MUNICIPAL  GOVERNMENT  [426 

to  constitute  a  loan  committee.  The  board  of  commissioners 
for  the  sinking  fund  was  to  be  composed  of  the  mayor,  comp- 
troller, treasurer  and  members  of  the  ways  and  means  com- 
mittee. 

Assessment  of  taxes.  A  new  method  of  assessment  was  pro- 
vided by  this  charter.  One  assessor  for  the  entire  city  was  to 
be  appointed  by  the  council  on  the  mayor's  nomination,  to 
serve  for  three  years  and  devote  his  whole  time  to  the  work. 
He  was  given  power  to  appoint  two  assistants.  The  assessor, 
comptroller,  treasurer,  attorney  and  chairman  of  the  ways  and 
means  committee  of  the  council  were  constituted  a  board  of 
review,  though  the  final  correction  of  the  assessment  rolls  was- 
left  to  the  council. 

The  recorder's  court.  The  recorder's  court  was  established 
in  place  of  the  old  mayor's  court.  In  the  absence  of  the  re- 
corder, one  of  the  circuit  judges  was  to  preside.  The  court 
was  given  substantially  the  same  privileges,  powers  and  juris- 
diction as  the  circuit  courts  had,  besides  having  exclusive 
cognizance  of  offenses  against  the  city  ordinances.  In  case  of 
persons  aggrieved  by  the  decisions  of  the  recorder's  court 
with  reference  to  the  city's  exercise  of  eminent  domain,  an 
appeal  was  open  to  the  state  supreme  court. 

Charter  amendments,  1859  to  1864..  The  charter  of  1857 
was  granted  when  Detroit  was  in  a  stage  of  rapid  development. 
The  city  had  now  a  population  of  about  40,000,  which  had  in- 
creased from  770  in  1810,  9,000  in  1840  and  21,000  in  1850. 
The  "  City  of  the  Straits"  after  150  years  was  really  beginning 
to  grow.  The  problems  of  municipal  government  were  multi- 
plying, but  the  whole  governmental  system  of  the  city  could 
no  longer  be  revolutionized  so  easily  as  in  the  early  years  of 
its  existence.  There  were  a  few  important  amendments  passed, 
however,  before  the  passage  of  the  metropolitan  police  bill  of 
1865,  when  the  real  struggle  against  legislative  interference 
and  the  abuses  of  the  board  system  began.  In  1859,  the  as- 
sessor was  directed  to  separate  the  rural  from  the  built-up 


427]  IN  MICHIGAN  AND  OHIO. 

portions  of  the  city,  and  assess  according  to  benefits  enjoyed.1 
Two  years  later  the  board  of  review  was  made  to  consist  of 
three  resident  property  holders  appointed  for  terms  of  three 
years  by  the  council  on  the  mayor's  nomination.2  By  the 
same  act  the  list  of  appointive  officers  was  considerably  modi- 
fied, by  adding  the  marshal,  a  receiver  of  taxes,  a  superin- 
tendent of  the  house  of  correction,  a  counselor,  and,  on  nomi- 
nation of  the  mayor,  a  fire  marshal.  The  mayor  and  two 
other  persons  appointed  during  pleasure  by  the  council  were 
constituted  a  board  of  police  commissioners,  on  whose  recom- 
mendation the  council  was  to  appoint  policemen  and  watch- 
men. The  commissioners  could  remove  any  officer  of  police 
summarily  for  cause  proven,  and  the  council  could  dismiss  any 
police  officer  at  pleasure.  In  1864  the  terms  of  office  of  the 
two  appointed  commissioners  were  fixed  at  four  years.' 

The  Metropolitan  Police.  February  28,  1865,  marks  the  be- 
ginning of  a  new  period  in  the  legislative  history  of  Detroit.4 
The  Board  of  Metropolitan  Police  was  established,  to  consist 
of  four  commissioners  appointed  from  residents  of  Detroit  by 
the  Governor  with  the  advice  and  consent  of  the  'Senate. 
These  commissioners  were  to  hold  office  for  eight  years,  retir- 
ing one  every  second  year,  and  to  receive  no  compensation. 
They  were  to  have  exclusive  control  of  the  police  force  and 
the  police  organization,  and  could  appoint  a  superintendent  of 
police,  one  or  more  captains,  sergeants,  and  patrolmen  at  sal- 
aries limited  by  the  act.  No  police  officer  was  allowed  to  re- 
ceive fees  for  his  services,  or  to  hold  any  other  office,  or  to  ac- 
cept a  public  nomination  for  any  office.  No  police  officer 
could  be  removed  except  for  cause,  and  after  a  hearing,  nor 
could  he  resign  except  after  giving  a  week's  notice.  All  va- 
cancies in  the  higher  ranks  were  to  be  filled  by  promotion- 
Every  policeman  had  to  be  a  United  States  citizen  and  a  resi- 
dent of  Michigan  for  two  years,  able  to  read  and  write  English. 
'Mich.  Laws,  1859,  p.  1057.  J  Jbid.,  1861,  pp.  180-203. 

s  Ibid.,  1864,  p.  20.  4  Jbid^  1865,  pp.  99-1 15. 


IIO  MUNICIPAL  GOVERNMENT  [428 

No  one  who  had  ever  been  convicted  of  a  crime  was  eligible, 
and  persons  removed  for  cause  could  not  be  re-appointed. 
No  police  officer,  while  on  duty,  was  allowed  to  enter  any 
saloon  or  house  of  prostitution  except  in  the  actual  perform- 
ance of  his  duties.  Any  citizen  could  complain  against  a 
police  officer,  and  cause  him  to  be  tried  before  the  board. 
Members  of  the  board  could  be  removed  by  the  governor  in 
the  same  way  as  sheriffs.  The  expenses  of  the  police  depart- 
ment were  to  be  a  city  charge.  The  board  was  to  make  an 
annual  estimate  of  expenses  in  detail,  which  was  to  be  sent 
in  by  the  comptroller  with  his  other  estimates,  and  allowed 
by  the  council  without  being  referred  to  the  citizens'  meeting. 
The  books  of  the  department  were  open  to  the  inspection  of 
the  mayor  or  comptroller,  and  the  council  could  require 
reasonable  information  at  any  time.  Annual  reports  were  to 
be  made  to  the  council.  The  office  of  city  marshal  was  abol- 
ished, and  its  functions  vested  in  the  superintendent  of  police. 
On  the  whole,  the  department  of  police  was  well  organized, 
but  the  assumption  of  control  by  the  state  and  the  enforced 
payment  of  all  expenses  by  the  city  without  its  having  any 
voice  in  the  administration  roused  a  great  deal  of  opposition. 
The  riot  of  1863  had  doubtless  convinced  the  Republican  leg- 
islature that  Detroit  with  its  Democratic  proclivities  would 
not  furnish  adequate  protection  for  its  colored  residents. 
There  was  some  talk,  too,  that  a  state  police  organization  was 
needed  to  cleanse  Detroit  politics.  And  so  it  is  not  strange 
that  the  real  questions  of  constitutional  and  administrative  law 
were  somewhat  obscured  by  the  heat  of  party  passions. 
Within  a  few  years,  however,  the  independence  of  the  metro- 
politan commission  was  decreased.  In  1867,  the  limit  of  po- 
lice expenditures  was  fixed  at  $125,000  a  year,1  and  in  1875 
an  act2  required  that  the  estimates  of  the  commissioners  be 
submitted  for  approval  to  the  city  Board  of  Estimates,  a  body 

1  Mich.  Laws,  1867,  vol.  2,  pp.  265-280. 

1  Mich.  Local  Acts,  1875,  P-  719- 


429]  IN  MICHIGAN  AND  OHIO.  Hj 

consisting  of  two  members  elected  from  each  ward  and  five 
members  elected  by  the  city  at  large.1  At  the  special  session 
of  the  Legislature  in  1882,  the  police  commissioners  were 
given  more  complete  control  over  the  police  force.2  The  su- 
perintendent of  police,  detectives,  attorney,  surgeon  and  secre- 
tary and  property  clerk,  could  be  removed  at  pleasure. 

The  fire  department.  By  act  of  March  26,  1867,  the  Fire 
Commission  was  established,  to  consist  of  four  members,  ap- 
pointed by  the  council  on  nomination  of  the  mayor  for  terms 
of  four  years.3  Any  one  of  the  commissioners  could  be  re- 
moved by  a  two-thirds  vote  of  the  common  council,  after  hav- 
ing been  given  a  chance  to  defend  himself.  A  position  on  this 
board  was  incompatible  with  any  political  office.  The  esti- 
mates up  to  $80,000  a  year  were  to  be  levied  if  approved  by 
a  citizens'  meeting,  and  paid  into  the  Detroit  Fire  Commission 
fund.  The  books  of  the  commission  were  open  at  all  times  for 
the  inspection  of  the  mayor  and  comptroller.  By  an  act  of 
1885  provision  was  made  for  pensioning  firemen  after  twenty- 
five  years  of  service.4  In  the  same  year  a  board  of  building 
inspectors  was  established,  to  consist  of  three  mechanics  or 
architects  appointed  by  the  board  of  councilmen,  the  newly 
created  upper  house  of  the  city  legislature.5  These  inspectors 
were  to  devote  their  whole  time  to  the  work  and  receive  sala- 
ries not  exceeding  $1200  a  year. 

Parks.  The  problem  of  parks  received  serious  attention 
after  1870.  In  1871  a  bi-partisan  board  of  six  park  commis- 
sioners was  established,  the  first  members  being  named  in  the 
act.6  Their  successors,  however,  were  to  be  appointed  by  the 

'The  board  of  estimates  had  been  established  in  1873  to  take  the  place  of  citi- 
zens' meetings. 

2  Mich.  L.  A.,  1882,  pp.  3-5. 

3  Mich.  Laws,  1867,  vol.  2,  pp.  931-938.     The  first  commissioners  were  named 
in  the  act. 

4  Mich.  L.  A.,  1885,  pp.  470-472.  s  Ibid.,  pp.  552-555. 
6  Mich.  Laws,  1872,  vol.  2,  pp.  1322-1334. 


II2  MUNICIPAL  GOVERNMENT  [430 

mayor  and  council,  two  retiring  each  year.  They  were  author- 
ized to  investigate  and  advise  the  common  council  in  reference 
to  the  purchase  of  land  for  a  park.  The  penalty  attached  to 
the  embezzlement  of  public  funds  was  imprisonment  in  the  city 
House  of  Correction  for  not  more  than  five  years,  or  a  fine  of 
not  more  than  $5,000,  or  both.  If  the  plans  of  the  commis- 
sioners were  approved  by  the  council,  the  question  of  issuing 
bonds  to  carry  them  out  was  to  be  submitted  to  the  citizens' 
meeting.  The  citizens'  meetings  called  for  the  purpose  could 
not  come  to  a  decision,  and  the  Legislature  of  1873  abolished 
them  altogether.1  To  take  the  place  of  this  species  of  referen- 
dum a  board  of  estimates  was  created,  to  be  made  up  of  two 
members  from  each  ward  and  five  members  at  large,  all  to  hold 
office  for  two  years.  The  ex-officio  members  without  vote  were 
the  president  of  the  council,  chairman  of  the  ways  and  means 
committee,  presidents  of  the  boards  of  education,  police  com- 
missioners, park  commissioners,  and  of  the  fire  commission, 
and  the  senior  member  of  the  board  of  inspectors  for  the  house 
-of  correction.  The  board  was  required  to  decide  by  absolute 
majority  vote  what  estimates  should  be  allowed  for  all  pur- 
poses formerly  submitted  to  the  citizens'  meeting.  But  at  the 
same  session  of  the  legislature  the  park  commissioners  had 
been  authorized  to  purchase  a  park  and  require  the  council  to 
issue  the  necessary  bonds.2  This  act  was  overthrown  by  the 
courts.3  The  matter  rested  until  1879,  when  the  common 
council  was  authorized  to  purchase  Belle  Isle  fora  public  park, 
and  construct  a  bridge  or  tunnel  -across  the  Detroit  river.4 
The  power  to  borrow  money  for  this  purpose  was  granted,  but 
the  total  debt  of  the  city,  not  including  that  of  the  water  board, 
and  deducting  the  amount  in  the  sinking  fund,  was  never  to 

1  Mich.  Laws,  1873,  vol.  2,  pp.  265-269,  and  Farmer's  History  of  Detroit  and 
^Michigan,  pp.  74,  75,  161. 

a  Mich.  Laws,  1873,  vo'-  2»  PP-  100-103. 
1 "  Detroit  Park  Case,"  28  Mich.,  228. 
4  Mich.  L.  A.,  1879,  pp.  215-216. 


4  3  I  ]  IN  MICHIGAN  AND  OHIO.  1 1 3 

exceed  two  per  cent,  of  the  total  assessed  property  valuation 
of  the  city.  In  1883  a  new  board  of  park  commissioners  was 
established.1  Again,  in  1889,  the  mayor  was  authorized  to 
appoint,  with  the  consent  of  the  council,  four  electors  and  tax- 
payers to  be  "  Commissioners  of  Parks  and  Boulevards."2 

The  board  of  public  works.  A  bi-partisan  board  of  public 
works,  to  consist  of  four  members,  the  first  members  named 
in  the  act,  and  their  successors  to  be  appointed  by  the  mayor 
and  council  for  terms  of  eight  years,  was  provided  by  the  act 
of  April  1 8th,  1871.3  But  the  creation  of  the  new  department 
was  bitterly  opposed,  by  the  friends  of  the  wafer  board,  whose 
functions  were  to  be  transferred,  and  the  act  was  declared  un- 
constitutional by  the  Supreme  Court.4  In  the  eventfuly  ear  of 
1873  a  new  act  was  passed  creating  the  "  Detroit  board  of 
public  works,"  to  consist  of  three  members  appointed  by  the 
council  on  nomination  of  the  mayor  for  terms  of  four  years.5 
$20,000  bonds  were  required  of  each.  Their  salaries  were 
left  to  the  decision  of  the  common  council,  but  they  were  ex- 
pected to  devote  all  their  time  to  board  duties.  The  street 
commissioners,  overseer  of  highways,  city  surveyor,  sewer 
commissioners,  and  plan  and  grade  commissioners  were  super- 
seded by  the  new  board.  An  annual  report  covering  expen- 
ditures and  condition  of  works  in  each  department  under  their 
control  was  required.  A  large  sewer  loan  was  authorized  in 
1 87 1,6  and  the  water  commissioners  were  empowered  to  bor- 
row $  1 ,000,000,  with  the  consent  of  the  council,  by  act  of  1873.7 
Provision  was  made  for  a  sinking  fund. 

Public  lighting.  In  1855  the  gas  light  company  had  been 
forbidden  to  increase  the  price  of  gas  without  the  consent  of 
the  council.8  Twenty  years  later  the  legislature  authorized 

1  Mich.  L.  A.,  1883,  pp.  402-403.  a  Ibid.,  1889,  pp.  607-617. 

3  Mich.  Laws.  1871,  vol.  3,  pp.  278-287. 

4  People  v.  Hurlbut,  24  Mich.,  44.     4  Mich.  Laws,  1873,  vol.  3,  pp.  175-183. 
6  Ibid.,  1871,  vol.  2,  p.  1371.  7  Ibid.,  1873,  vol.  3,  pp.  37-39. 

•*  Ibid.t  1855.  pp.  420-421. 


MUNICIPAL  GOVERNMENT  [432 

the  creation  of  a  board  of  gas  commissioners.1  They  were  to 
be  four  in  number,  appointed  by  the  mayor  and  council,  and 
subject  to  removal  on  the  same  conditions  as  elective  officers. 
With  the  approval  of  the  council,  existing  gas  plants  might  be 
purchased,  and  a  complete  establishment  for  supplying  the 
city  with  gas  might  be  built  up.  The  question  of  raising  the 
money  by  tax  or  loan  was  to  be  submitted  to  the  voters  of 
the  city.  The  city  never  took  advantage  of  the  provisions  of 
this  law,  although  it  still  remains  a  part  of  the  charter. 
The  reason  for  this  is  doubtless  the  general  substitution  of 
electricity  for  gas  as  a  public  illuminant.  By  an  act  of  1887, 
a  fund  for  public  lighting  was  set  apart,  and  the  council  was 
authorized  to  levy  special  taxes,  and  contract  for  lighting  for 
terms  of  one,  two  or  three  years.2  This  provision  was  exper- 
imental, and  led  up  to  the  construction  of  a  city  lighting  plant 
a  few  years  later. 

The  board  of  health.  The  Detroit  board  of  health  was  es- 
tablished in  1 88 1.3  Three  members  were  to  be  practicing  phy- 
sicians appointed  by  the  board  of  councilmen  on  nomination 
of  the  mayor.  The  mayor,  controller,  and  president  of  the 
board  of  police  were  to  be  ex  officio  members.  The  board 
was  to  appoint  a  health  officer  with  special  reference  to  his 
knowledge  of  chemistry,  hygiene,  and  sanitary  matters,  who 
should  give  his  whole  time  to  the  work.  He  could  be  re- 
moved by  two-thirds  vote  of  the  board.  His  salary  was  to  be 
fixed  by  the  common  council,  not  to  exceed  $3,000.  The 
board  of  health  was  also  given  the  nomination  of  the  city  phy- 
sician. 

The  Board  of  Education.  During  this  period  of  board  gov- 
ernment it  was  not  strange  that  the  financial  independence  of 
the  Board  of  Education  should  be  increased.  In  1865  the 
council  was  required  to  allow  the  board's  estimates  to  the 

iMich.  L.  A.,  1875,  PP-  538-541.  *Ibid.,  1887,  pp.  393~395- 

*  Ibid.,  1881,  pp.  307-308. 


433]  IN  MICHIGAN  AND  OHIO.  115 

amount  of  $3.00  for  every  child  of  school  age.1  Four  years 
later  the  amount  of  the  required  tax  was  raised  to  $4.00  for 
every  child  of  school  age.2  The  mayor  and  recorder  were  at 
the  same  time  made  ex  officio  members  of  the  Board  of  Educa- 
tion, but  without  vote.  With  the  approval  of  the  citizens' 
meeting,  a  special  tax  not  exceeding  five  mills  on  the  dollar 
could  be  levied  for  the  purpose  of  purchasing  school  lots, 
erecting  buildings,  etc.,  or  a  loan  of  like  sum  could  be  negoti- 
ated. By  an  act  of  1873,  the  Board  of  Education  was  required 
to  appoint  a  superintendent  of  schools  for  a  term  of  three 
years  at  a  maximum  salary  of  $4,000  per  year.3  A  public  li- 
brary building  could  be  erected  at  a  cost  of  $  150,000,  the 
money  to  be  raised  by  loan  or  special  tax  approved  in  the  reg- 
ular way.  The  Board  of  Education  was  re-organized  in  i88i.4 
It  was  hereafter  to  consist  of  twelve  school  inspectors  chosen, 
six  each  year,  on  general  ticket.  A  district  library  was  to  be 
established,  and  the  board  was  authorized  to  appoint  six 
library  commissioners.  A  one-fifth  mill  tax  was  to  be  levied 
annually  for  the  support  of  the  library.  A  new  reorganization 
took  place  in  1889,  so  that  one  inspector  was  to  be  elected 
from  each  ward  for  a  term  of  four  years.5  Women  were  given 
the  franchise  for  the  election  of  these  inspectors. 

Charities.  A  board  of  four  poor  commissioners  was  estab- 
lished in  i8/9-6  The  members  were  to  be  appointed  by  the 
council  on  nomination  of  the  mayor,  and  were  themselves 
authorized  to  appoint,  with  the  council's  consent,  a  secretary,  a 
superintendent  of  poor,  and  other  officers.  This  board  was 
to  have  charge  of  poor  relief,  burial,  etc.  By  an  act  of  1881 
neglected  families  were  to  receive  an  allowance  from  poor  com- 
missioners,— twenty  cents  a  day,  if  only  a  wife ;  thirty  cents 
a  day,  if  both  wife  and  children.7 

1  Mich.  Laws,  1865,  p.  350.  '  Ibid.,  1869,  vol.  2,  pp.  71-77. 

8  Ibid.,  1873,  vol.  3,  pp.  74-80.         *Mich.  L.  A.,  1881,  p.  100. 

6  Ibid.,  1889,  p.  176.    6  Ibid.,  1879,  pp.  253-266.    i  Ibid.,  i88l,p.  342. 


U6  MUNICIPAL  GOVERNMENT  [434 

Changes  in  the  council.  The  powers  and  organization  of  the 
common  council  were  changed  from  time  to  time.  In  1867 
the  council  was  authorized  to  fix  the  pay  of  its  own  members, 
not  to  exceed  $1.50  apiece  for  each  regular  session  actually 
attended.1  Councilmen  had  already  been  made  ineligible  to 
any  appointive  city  office.  Now  they  became  ineligible  to  the 
office  of  recorder,  or  any  Wayne  county  office  except  that  of 
notary  public.  A  few  years  later  the  council  was  required  to 
publish  only  such  part  of  its  proceedings  as  it  deemed  advis- 
able.2 In  1873  it  was  empowered  to  levy  a  special  tax  of 
$2,000  annually  for  the  expense  of  public  receptions,  entertain- 
ments and  celebrations.3  An  act  of  1881  gave  Detroit  a  bi- 
cameral legislature.4  There  had  been  only  one  chamber  since 
the  days  of  Governor  Hull.  Now  an  upper  house  was  estab- 
lished, to  be  made  up  of  twelve  members  elected  for  terms  of 
four  years  on  general  ticket,  three  to  retire  every  year.  All 
appointments  made  on  nomination  were  henceforth  to  be  con- 
firmed by  this  upper  house,  which  was  called  the  board  of 
councilmen.  The  concurrence  of  both  houses  was  of  course 
made  necessary  for  the  passage  of  money  bills  and  ordinances. 
All  reports  were  to  be  made  to  the  aldermen  and  sent  by  them 
to  the  upper  house  for  concurrence.  The  board  of  estimates 
was  abolished  and  its  functions  conferred  upon  the  board  of 
councilmen.  The  president  of  the  councilmen  was  to  act  as 
vice-mayor.  It  was  also  enacted  that  no  member  of  the  com- 
mon council  should  hold  any  state  legislative  office,  and  all 
were  required  to  be  freeholders.5  Their  salaries  were  fixed  at 
$3.00  a  day  for  attendance  at  regular  sessions.  In  1887  the 
one-chambered  council  was  reestablished,6  and  the  salary  of 
the  aldermen  was  fixed  at  $600  a  year.7  The  board  of  esti- 
mates was  established  as  of  old,  with  power  to  approve,  disap- 
prove, or  cut  down  the  estimates  laid  before  it. 

1  Mich.  Laws,  1867,  vol.  2,  pp.  1110-1115.     2  Ibid.,  1871,  vol.  2,  p.i23i. 

3  Ibid.,  1873,  v°l-  2»  PP-  1279-12%3-  *Mich.  L.  A.,  1881,  pp.  226-228. 

5  Ibid.,  pp.  370-377.  6  Ibid.,  1887,  pp.  619-629.  7  Ibid.,  p.  765. 


435]  IN  MICHIGAN  AND  OHIO.  i\-j 

The  charter  amendments  of  1879  an^  I88i.  The  charter  had 
been  amended  in  important  particulars  both  in  1879  an(^  m 
1 88 1.  In  the  former  year  it  was  provided  that  each  officer, 
board  or  commission  should  have  the  nomination  of  the 
assistants  and  other  officers,  subject  always  to  the  approval 
of  the  council.1  Officers  could  be  removed  by  the  council  on 
representation  of  the  superior  authority,  if  the  charge  were  sus- 
tained. The  assessors  were  directed  to  assess  property  at  its 
cash  value.  The  board  of  review  was  to  consist  of  five  resi- 
dent citizens  and  freeholders  appointed  by  the  council.  Three 
of  the  five  were  to  be  nominated  by  the  mayor  and  hold  office 
for  three  years,  one  retiring  each  year.  The  two  others  were 
to  be  aldermen,  one  from  the  eastern  and  one  from  the  western 
district  of  the  city,  nominated  by  the  president  of  the  council, 
and  holding  office  for  one  year.  In  1881  it  was  enacted  that 
the  city  of  Detroit  should  enjoy  local  legislative  and  adminis- 
trative powers  as  provided  by  the  charter,  together  with  such 
implied  and  incidental  powers  as  were  enjoyed  by  municipal 
corporations  under  the  state  laws.2  The  two  departments, 
legislative  and  administrative,  were  to  be  kept  separate,  and 
no  person  or  body  belonging  to  one  could  exercise  powers  be- 
longing to  the  other  except  as  provided  in  the  charter.  The 
controller3  and  the  water  commissioners4  were  hereafter  to  be 
appointed  on  nomination  of  the  mayor. 

The  charter  of  1883.  On  June  7,  1883,  a  new  charter  was 
granted  to  Detroit.5  The  city  had  increased  in  population  un- 
der the  act  of  1857  from  40,000  to  140,000.  The  numerous 
acts  of  intervening  years  had  put  the  charter  into  somewhat 
cumbrous  shape,  and  the  new  statute  reduced  the  fundamental 
law  of  the  city  to  more  definite  form.  At  the  same  time  a  few 
amendments  were  introduced.  Either  branch  of  the  city  leg- 

1  Mich.  L.  A.,  1879,  pp.  215-216.  »  Ibid.,  1 88 1,  pp.  251-254. 

» Ibid.,  p.  324.  *  Ibid.,  pp.  370-377. 

5  Ibid.,  1883,  pp.  579-646. 


MUNICIPAL  GOVERNMENT  [436 

islature  could  require  by  resolution  that  any  officer  should 
report  at  any  time.  Removal  of  any  elective  officer,  except 
the  mayor  and  the  recorder,  was  to  be  by  two-thirds  vote  of 
the  common  council  in  joint  session,  after  trial.  The  duties  of 
standing  committees  in  either  house  were  to  be  prescribed  by 
general  ordinance.  The  special  functions  of  the  old  board  of 
estimates  were  no  longer  to  be  exercised  by  the  board  of 
councilmen.  The  method  of  assessment  was  again  changed. 
A  non-partisan  board  of  three  assessors  nominated  by  the 
mayor  was  established.  The  common  council  in  joint  session 
was  to  sit  as  a  board  of  review.  Persons  in  possession  of  real 
estate  were  to  be  held  liable  for  taxes,  which  they  might  after- 
wards recover  from  the  owners  by  action  in  assumpsit,  or  in 
withholding  rent.  The  separate  fund  system  was  retainedby 
the  city  finances.  The  recorder  was  to  be  chosen  for  six 
years  and  receive  from  the  state  the  regular  salary  of  a  circuit 
judge,  and  enough  more  from  the  city  to  make  $4,000  a  year. 
Elections. — The  problem  of  elections  claimed  the  serious  at- 
tention of  the  legislature  during  the  next  few  years.  In  1885 
an  act  was  passed  to  establish  a  board  of  commissioners  of 
registration  and  election,  to  consist  of  four  members  appointed 
by  the  board  of  councilmen  on  nomination  of  the  mayor,  for 
terms  of  four  years,  one  to  retire  each  year.1  The  two  leading 
political  parties  were  each  to  have  two  members  of  the  board. 
In  each  election  district  the  commissioners  were  to  appoint 
two  electors,  one  of  each  party,  who  could  read  and  write 
English,  to  be  registers  and  inspectors  of  elections.  This  act 
was  held  to  be  unconstitutional  by  the  Supreme  Court.2  A 
new  law  was  passed  two  years  later.3  By  this  it  was  provided 

1  Mich.  L.  A.,  1885,  pp.  281-282. 

2  Attorney  General  v.   The  Board  of  Councilmen,  58  Mich.  213,  supra.  59. 
The  chief  ground  of  the  decision  was  that  the  requirement  of  the  exclusive  and 
equal  representation  of  two  political  parties  prescribed  an  unconstitutional  test  for 
holding  office.     The  subdelegation  of  powers  and  the  violation  of  the  principle  of 
local  self-government  were  also  urged  against  the  act 

8  Mich.  L.  A.,  1887,  pp.  910-913. 


437] 


IN  MICHIGAN  AND  OHIO. 


that  five  inspectors  should  be  chosen  annually  in  each  election 
district.  No  elector  could  vote  for  more  than  three,  and  the 
five  receiving  the  highest  number  of  votes  were  to  be  chosen. 
No  election  could  be  held  in  a  saloon  or  bar-room,  or  place 
contiguous  thereto,  and  any  one  bringing  intoxicating  liquors 
to  a  polling-place  was  to  be  deemed  guilty  of  a  misdemeanor. 
In  1889  the  registration  laws  were  made  much  more  stringent.1 

IV.  Mayor  Pingree's  administration,  1889  till  the  present  time. 

In  November,  1889,  Mr.  Hazen  S.  Pingree  was  elected 
mayor  of  Detroit  on  the  Republican  ticket  by  a  large  majority. 
He  has  since  been  three  times  reflected  by  increasing  ma- 
jorities. This  fact  alone,  when  we  consider  that  Detroit  has 
heretofore  had  a  strongly  Democratic  population,  would  lead 
us  to  think  that  Mr.  Pingree's  administration  must  be  marked 
by  great  personal  vigor.  We  might  also  expect  that  the  con- 
tinued triumph  of  the  Republican  party  in  the  city  would  bring 
a  more  liberal  treatment  from  the  state  Legislature,  which  is 
nearly  always  Republican.  As  a  matter  of  fact  the  results  from 
the  point  of  view  of  legislation  have  not  been  very  striking. 
The  one  Democratic  legislature  elected  in  Michigan  for  many 
years  back  restored  to  Detroit  in  1891  the  control  of  the 
police.2  After  twenty-six  years  the  appointment  of  the  com- 
missioners was  transferred  from  the  hands  of  the  Governor  to 
those  of  the  Mayor.  The  consent  of  the  council  for  the  ap- 
pointments was  not  required. 

The  powers  of  the  mayor  have  been  slightly  increased  dur- 
ing the  last  few  years.  In  1893,  he  was  given  a  veto,  subject 
to  the  usual  two-thirds  vote,  over  all  financial  resolutions  of 
the  Board  of  Education.3  In  this  year,  also,  the  department 
of  law  was  established  for  the  city.4  At  its  head  was  placed 
the  city  counselor  appointed  by  the  mayor  alone  for  a  term  of 

1  Mich.  L.  A.,  1889,  pp.  994-1005.  *  Ibid.t  1891,  pp.  936-938. 

3  Ibid.,  1893,  pp.  "79-ll8l.  *J6id.,pp.  1393-1396. 


I2Q  MUNICIPAL  GOVERNMENT  ("438 

three  years.  The  counselor  receives  a  salary  of  $5,000  and  de- 
votes all  his  time  to  the  business  of  the  city.  Along  with  the 
growth  in  the  mayor's  power  there  has  been  an  increased  use 
of  referendum.  The  question  of  free  text-books,  and  similar 
measures,  after  being  passed  by  the  Board  of  Education,  must 
be  submitted  to  popular  vote.1  The  last  issue  of  sewer  bonds 
was  authorized  to  the  amount  of  $1,000,000,  with  the  consent 
of  the  electors.2  And  even  the  citizens'  meeting  was  revived 
to  vote  a  levy  beyond  the  amount  of  $150,000  for  school 
buildings.3 

In  1893  the  powers  of  the  board  of  health  were  increased.4 
It  was  given  power  to  appoint  a  president,  a  health  commis- 
sioner, a  health  officer,  a  special  sanitary  inspector,  a  food 
inspector,  a  meat  inspector,  a  milk  inspector,  a  plumber  and 
sanitary  inspectors.  These  officers  were  to  be  chosen  with 
reference  to  their  special  fitness  for  their  particular,  duties. 
The  plumbing,  drainage  and  ventilators  of  the  houses  and  pub- 
lic buildings  were  subjected  to  the  regulations  and  approval  of 
the  board,  and  plans  for  buildings  being  erected  or  repaired 
were  to  be  submitted  to  the  board.  Owing  to  certain  difficul- 
ties that  arose  in  the  spring  of  1895  with  reference  to  the 
health  administration,  the  legislature  of  that  year  gave  the  ap~ 
pointment  of  the  Detroit  board  of  health  into  the  Governor's 
hands.5  This  act  was  certainly  a  step  backward  in  the  prog- 
ress towards  home-rule.  The  board  of  health  is  now  the  only 
municipal  board  appointed  for  Detroit  by  the  state  authorities. 

While  not  very  much  has  been  done  to  make  the  charter  a 
model  city  constitution,  a  great  deal  has  been  done  to  awaken 
civic  spirit  and  introduce  progressive  administration.  In  1893 
a  public  lighting  commission  was  created,  to  consist  of  six 
members  appointed  by  the  mayor  and  council.6  The  council, 

JMich   L.  A.,  1891,  pp.  938-939.  *  Ibid.,  p.  1037. 

8  Ibid.,  pp.    1061-1064.  *  Ibid.,  1893,  PP-  1226-1229. 

5  Ibid.,  1895,  not  yet  published.  6  Ibid.,  1893,  PP-  459-463- 


439]  IN  MICHIGAN  AND  OHIO.  I2i 

by  this  act,  was  authorized  to  contract  for  public  lighting,  or 
with  the  approval  of  the  citizens,  to  purchase  an  electric  light- 
ing plant,  the  first  cost  not  to  exceed  $800,000,  and  manage 
the  business  directly.  As  a  result  of  this  law,  the  city  now 
owns  its  own  lighting  plant,  and  is  supplying  itself  with  light 
at  a  much  lower  cost  than  under  the  former  contract  system. 
The  last  few  years  have  been  marked  by  much  progress  in 
street-paving  and  sewer  construction.  But  perhaps  the  most 
important  advance  has  been  made  with  reference  to  the  street- 
car system.  After  a  long  and  determined  fight  with  the  old 
companies,  the  franchise  of  about  forty  miles  of  streets  was  re- 
cently awarded  to  a  new  company  on  favorable  terms.  Single 
fares  are  five  cents,  but  eight  tickets  can  be  had  for  a  quarter, 
good  between  5.45  a.  m.  and  8  p.  m.,  and  six  for  a  quarter, 
good  during  the  rest  of  the  twenty-four  hours.  The  new  fran- 
chise is  to  run  for  thirty  years,  when  the  city  will  have  the 
right  to  purchase  the  plant  for  a  consideration  the  amount  of 
which  is  to  be  determined  by  arbitration. 

The  city  of  Detroit  has  to-day  a  population  of  about  250,- 
ooo.  In  the  decade  between  1880  and  1890  the  number  of 
inhabitants  almost  doubled.  Detroit  is  clearly  entering  upon 
the  carter  of  a  large  city.  There  are  no  densely  populated 
slum  districts,  and  the  city  almost  everywhere  is  clean  and 
well-suited  for  residence.  Mayor  Pingree  has  made  the  city's 
corporate  life  very  vigorous  for  the  last  six  years.  At  the 
close  of  1894  there  were  215  miles  of  paved  streets.  The  147 
miles  of  public  sewers  and  256  miles  of  laterals,  being  the 
total  for  the  city  up  to  that  date,  had  been  constructed  at  a 
cost  of  about  five  and  a  quarter  millions  of  dollars.  Belle  Isle, 
the  chief  park  of  the  city,  has  an  area  of  nearly  700  acres,  and 
there  are  several  small  parks  scattered  through  the  city. 

The  mayor's  annual  message  of  January  8,  1895,  is  full  of 
suggestions  and  recommendations.  He  urges  the  necessity 
of  bringing  the  departments  into  complete  subordination  to 
the  executive.  A  part  of  the  aldermen  might  well  be  elected 


122  MUNICIPAL  GOVERNMENT  [440 

at  large.  A  general  purchasing  agent  for  the  city  should  be 
provided,  and  all  officers  and  boards  be  required  to  order  their 
supplies  through  him.  The  mayor  advocates  municipal  civil 
service  reform,  and  the  adoption  of  civil  service  examinations 
in  the  selection  of  jurors.  A  thorough  system  of  independent 
audit  is  urged  for  all  the  departments.  An  increase  of  the 
bond  limit  to  at  least  four  per  cent,  of  the  assessed  valuation 
is  favored.  The  mayor  favors  the  taxation  of  all  property  ex- 
cept that  belonging  to  the  city.  Churches,  railroads,  works 
of  art,  etc.,  should  no  longer  be  exempt.  He  denounces  the 
meter  system  as  used  by  the  water  board,  and  recommends 
free  water.  The  school  board  ought  to  be  reorganized  to  con- 
sist of  a  small  commission  appointed  by  the  mayor  or  elected 
by  the  people  on  general  ticket.  A  new  primary  law  should 
be  enacted  with  stringent  provisions  to  prevent  any  one  but 
qualified  voters  of  the  district  taking  part.  The  revenue  for 
re-paving  streets,  which  now  is  taken  entirely  from  the  general 
treasury,  should  be  replenished  by  a  graded  vehicle  tax,  like 
that  in  Denver,  Colorado. 

It  is  to  be  hoped  that  the  present  tendencies  in  the  Detroit 
administration  will  continue.  One  of  the  things  most  needed, 
however,  in  order  to  allow  the  city  to  extend  its  activities  at 
will,  is  a  new  charter  based  on  the  ideas  of  larger  home-rule 
and  administrative  unity.  At  the  present  time  the  city  gov- 
ernment consists  of  a  long  list  of  elected  and  appointed  offi- 
cers, a  common  council  of  sixteen  members,  and  the  following 
thirteen  boards  and  commissions :  Estimates,  Public  Light- 
ing, Police,  House  of  Correction,  Sinking  Fund,  Education, 
Library,  Poor,  Water,  Health,  Fire,  Public  Works  and  Park 
and  Boulevard. 


CHAPTER  VII. 

THE    DEVELOPMENT   OF   CLEVELAND'S    CHARTER. 

THE  charter  history  of  Cleveland,  like  that  of  Detroit,  may 
be  divided  into  four  periods.  In  the  case  of  Cleveland,  these 
divisions  are  well-marked  from  the  standpoint  of  governmental 
organization  rather  than  from  the  standpoint  of  political  rela- 
tions. The  first  period  lasted  till  1836,  and  was  the  period  of 
village  organization.  The  city  charter  of  1836,  which  was  in 
force  until  1852,  is  what  marks  the  second  period.  The  adop- 
tion of  general  municipal  laws  in  1852  brings  us  to  the  third 
period,  during  which  Cleveland  was  nominally  under  general 
laws,  but  practically  governed  to  a  very  large  extent  by 
special  acts.  The  charter  of  1891,  although  in  form  a  general 
law,  was  such  a  radical  measure  that  it  may  be  fairly  said  to 
have  marked  a  new  period  in  Cleveland's  charter  history.  The 
last  three  periods  may  be  roughly  characterized  as  the  periods 
of  the  council  system,  the  board  system  and  the  mayor  system 
respectively. 

I.    Village  organization. 

According  to  the  custom  of  the  times,  a  patch  of  the  Ohio 
wilderness  was  laid  out  and  christened  "  The  City  of  Cleve- 
land" by  a  surveying  party  sent  out  in  1796  by  the  Connecti- 
cut Land  Company.  But  unlike  many  other  "  paper  cities" 
of  the  Northwest,  Cleveland  came  to  be  a  real  city,  with  peo- 
ple, and  industries,  and  municipal  organization.  The  town- 
ship was  organized  in  1802,  and  in  1814  the  village  was  incor- 
porated.1 The  officers  of  the  village  were  to  be  president,  re- 

1  Ohio  Laws,  13  v.  17-26. 
440  "3 


MUNICIPAL  GOVERNMENT 


[443 


corder,  three  trustees,  treasurer,  village  marshal,  and  two  as- 
sessors, all  of  them  freeholders  or  householders,  chosen  by 
electors  of  a  year's  residence.  The  corporate  powers  of  the 
village  were  vested  in  the  first  five  officers,  and  they,  always 
including  either  the  mayor  or  recorder,  could  pass  by-laws 
and  ordinances  not  in  conflict  with  national  or  state  law.  But 
there  was  a  special  provision  which  forbade  them  to  abuse,  take 
up,  or  sell  the  horses,  cattle,  sheep  and  hogs  that  might  stray 
into  the  village  from  outside  owners.  With  these  two  limita- 
tions, the  ordinance  power  was  left  free  for  all  things  seeming 
"  necessary  and  proper  for  the  interest,  safety,  improvement 
and  convenience  of  said  village."  There  was,  of  course,  the 
customary  enumeration  of  powers  granted  to  the  corporation. 
The  amount  of  property  to  be  owned  could  not  be  more  than 
enough  to  yield  an  annual  income  of  $5,000,  and  the  rate  of 
taxation  was  limited  to  a  maximum  of  one  per  cent.  The 
records  of  the  trustees'  proceedings  were  to  be  open  at  all 
times  for  the  inspection  of  every  elector. 

This  charter  was  not  much  changed  for  the  next  twenty 
years.  An  act  of  1827  regulated  the  slaughtering  of  animals 
and  provided  for  the  suppression  of  certain  nuisances.1  In 
1831  the  first  attack  was  made  upon  the  excise  problem.2 
The  board  of  trustees  was  empowered  to  grant  a  license 
for  vending  spirituous  liquors,  on  petition  of  twelve  respectable 
householders,  the  annual  fee  not  to  be  less  than  $30.00.  No 
license  could  be  granted  for  more  than  one  year,  nor  unless 
the  grantee  was  of  good  moral  character,  and  the  trustees  were 
convinced  that  the  license  would  be  of  public  benefit.  In 
1834,  the  system  of  special  assessments  was  introduced.3  The 
trustees  were  authorized  to  protect  the  land  exposed  to  Lake 
Erie,  and  assess  the  cost  of  the  improvements  on  lots  in  pro- 
portion to  benefits.  Sewers  and  street  improvements,  except 

1  Ohio  Local  Acts,  25  v.  27  (vol.  25,  p.  27). 

2  Ibid.,  31  v.  223.  3  Ibid.,  32  v.  93,  94. 


443]  fN  MICHIGAN  AND  OHIO.  I25 

sidewalks,  were  to  be  paid  for  in  the  same  way.  During  the 
next  year  a  board  of  equalization  was  established  to  adjust  the 
grievances  caused  by  these  special  assessments  ;  and  a  board  of 
three  appraisers  was  appointed  by  the  General  Assembly.1 
This  is  an  early  instance  of  the  appointment  of  local  municipal 
officers  by  the  central  legislature. 

II.   Cleveland  under  its  first  city  charter,  1836  to  1852. 

The  charter  of  1836.  The  organization  of  the  council.  By 
act  of  March  6,  1836,  the  inhabitants  of  Cleveland  were  incor- 
porated as  a  city.2  The  government  was  vested  in  a  mayor 
and  council,  the  latter  to  be  composed  of  three  members  chosen 
from  each  ward,  and  as  many  aldermen  as  there  were  wards, 
elected  on  general  ticket,  but  no  two  of  them  were  to  be  residents 
of  the  same  ward.  The  number  of  wards  was  fixed  at  three 
until  the  council  should  see  fit  to  increase,  alter  or  change 
them.  This  is  certainly  an  extraordinary  system,  establishing 
a  city  council  composed  so  curiously  of  local  and  general  ele- 
ments, with  power  to  increase  or  to  decrease  its  own  numbers 
at  pleasure.  The  combination  of  aldermen  and  councilmen  in 
a  single  body  suggests  the  influence  of  English  municipal  or- 
ganization, while  the  requirement  that  one  alderman  shall  be 
elected  from  each  ward  by  vote  of  the  entire  city  is  the  exact 
obverse  of  the  general  English  system,  which  limits  the  resi- 
dence of  the  voters  but  not  that  of  the  candidates. 

The  powers  of  the  council.  The  powers  of  the  council  were 
enumerated  at  great  length.  The  general  clause  reads, — "and 
further  to  have  power  and  authority,  and  it  is  hereby  made 
their  duty,  to  make  and  publish  from  time  to  time  all  such 
laws  and  ordinances,  as  to  them  may  seem  necessary  to  sup- 
press vice,  provide  for  the  safety,  preserve  the  health,  promote 
the  prosperity,  improve  the  order,  comfort  and  convenience  of 
said  city  and  its  inhabitants,  and  to  benefit  the  trade  and  com- 
merce thereof,  as  are  not  repugnant  to  the  general  laws  of  the 
1  O.  L.  A.,  33  v.  220.  J  Ibid.,  34  v.  271-284. 


126  MUNICIPAL  GOVERNMENT  [444 

state."  A  city  clerk  and  any  other  officers  necessary  to  the  in- 
terests of  the  city  were  to  be  appointed  by  the  council.  By  a 
two-thirds  vote  of  this  body  the  mayor  might  be  allowed 
compensation,  and  their  own  members  might  be  paid  not  to 
exceed  $1.00  apiece  for  each  meeting  attended. 

The  mayor.  It  is  worth  while  to  quote  in  full  the  duties  of 
the  mayor  as  outlined  in  this  rather  remarkable  charter.  "  It 
shall  be  the  duty  of  the  mayor,"  the  law  runs,  "  to  keep  the 
seal  of  said  city,  sign  all  commissions,  licenses  and  permits, 
which  may  be  granted  by  the  city  council ;  to  take  care  that 
the  laws  of  the  state  and  of  the  city  council  are  faithfully  exe- 
cuted ;  to  exercise  a  constant  supervision  and  control  over  the 
conduct  of  all  subordinate  officers,  and  to  receive  and  examine 
into  all  complaints  against  them,  for  neglect  of  duty  ;  to  pre- 
side at  the  meetings  of  the  city  council  when  other  duties  shall 
permit ;  to  recommend  to  said  city  council  such  measures  as 
he  may  deem  expedient;  to  expedite  all  such  as  shall  be  re- 
solved upon  by  them  ;  and  in  general  to  maintain  the  peace 
and  good  order,  and  advance  the  prosperity  of  the  city;  as  a 
judicial  officer  he  shall  have  exclusive  original  jurisdiction  of 
all  cases  for  the  violation  of  any  ordinance  of  said  city;  and  in 
criminal  cases  he  is  hereby  vested  with  powers  co-equal  with 
justices  of  the  peace  within  the  county  of  Cuyahoga,  and  shall 
be  entitled  to  like  fees  ;  and  he  shall  award  all  such  process, 
and  issue  all  such  writs  as  may  be  necessary  to  enforce  the 
due  administration  of  right  and  justice  throughout  said  city, 
and  for  the  lawful  exercise  of  his  jurisdiction,  agreeably  to  the 
usages  and  principles  of  law ;  and  when  presiding  at  the  meet- 
ings of  the  city  council,  he  shall  have  a  casting  vote,  when  the 
votes  of  the  members  are  equal."  The  mayor,  members  of  the 
council,  treasurer  and  marshal  were  all  to  be  elected  annually. 

Financial  provisions.  This  charter  was  remarkable  also  for 
its  financial  provisions.  The  city  council  was  given  "  power  to 
borrow  money  for  the  discharge  and  liquidation  of  any  debt  of 
the  city,  either  present  or  prospective,  and  to  provide  for  the 


445]  IN  MICHIGAN  AND  OHIO. 

redemption  of  any  loan  by  them  made,  and  the  payment  of  the 
interest  thereon ;  and  to  pledge  the  revenues  and  property  of 
the  city  therefor."  This  grant  was  made  effective  by  the 
power  to  levy  such  rate  of  taxes  as  should  be  necessary  for 
the  discharge  of  lawful  debts  and  the  payment  of  current  ex- 
penses. But  the  exercise  of  these  powers  was  carefully  guarded 
by  a  prescribed  procedure  insuring  deliberation  and  responsibil- 
ity. An  ordinance  for  making  a  loan  had  to  receive  the  affirm- 
ative votes  of  two  thirds  of  the  whole  council,  the  yeas  and 
nays  being  entered  on  the  records,  then  be  postponed  at  least 
two  weeks,  and  be  passed  again  in  the  same  manner.  The  tax 
levy,  also,  was  to  be  fixed  by  an  absolute  two-thirds  majority. 
One  assessor  was  to  be  appointed  for  each  ward  by  the  coun- 
cil, and  that  body  was  to  determine  the  method  of  correction 
and  equalization.  Ordinary  laws  and  ordinances  had  to  be 
passed  twice  by  an  absolute  majority  vote. 

The  school  system.  The  council  was  given  the  oversight  of 
common  schools,  and  authorized  to  divide  each  ward  into 
school  districts  and  appoint  from  each  district  one  judicious 
and  competent  person  to  be  a  member  of  "  The  Board  of 
Managers  of  Common  Schools  in  the  City  of  Cleveland."  To 
this  board  was  given  the  direction  of  the  school  administration, 
while  the  council  was  to  furnish  the  funds.  The  schools  were 
to  be  free  to  all  white  children  more  than  four  years  old,  and 
the  property  of  colored  persons  was  exempted  from  school  tax- 
ation. 

Subscriptions  to  railroad  and  plank  road  stocks.  In  1838,  a 
plan  of  subscribing  to  railroad  companies  was  inaugurated, 
which  turned  out  exceptionally  profitable  in  Cleveland's  case. 
The  city  was  authorized  to  procure  a  loan  and  subscribe  £200,- 
ooo  to  the  stock  of  a  proposed  railroad,  to  run  in  the  direction 
of  Pittsburgh  Five  persons,  named-  in  the  act,  were,  "  by  and 
with  the  consent  of  the  city  council  of  the  said  city  of  Cleve- 
land, and  the  citizens  thereof,"  appointed  commissioners  in 

'O.  I..  A..  3'  v.  5> 


I2g  MUNICIPAL  GOVERNMENT  [446 

trust  to  manage  the  required  loan  and  its  investment.  Vacan- 
cies in  their  number  could  be  filled  by  co-optation.  The  city 
council  was  required  to  provide  funds  for  the  payment  of  in- 
terest on  the  loan,  and  the  principal  when  due.  If  the  coun- 
cil refused,  the  commissioners  could  levy  the  necessary  tax 
themselves.  They  were  required  to  make  semi-yearly  reports 
to  the  council,  and  submit  their  books  to  inspection  by  it  or 
its  authorized  committees.  They  were  to  be  allowed  compen- 
sation for  their  reasonable  expenses.  During  the  next  thirteen 
years,  before  the  constitutional  prohibition  of  1851,'  four  sim- 
ilar acts  were  passed,  authorizing  an  aggregate  subscription  01 
$500,000  to  the  stocks  of  various  railroads.2  Cleveland's  rail- 
road investments  seem  to  have  been  well  administered,  and 
were  profitable  in  the  long  run.  In  1845,  a  subscription  of 
$50,000  to  the  capital  stock  of  a  plank  road  company  was  au- 
thorized, with  the  consent  of  the  electors.3  The  county 
auditor  was  required  to  levy  a  yearly  tax,  for  the  payment  of 
interest  on  the  bonds,  and  the  dividends  on  the  stock  were  to 
be  set  aside  as  a  sinking  fund. 

The  excise  problem.  In  1839  the  council  was  deprived  of  its 
power  to  grant  retail  liquor  licenses,  and  taverns  could  be 
licensed  only  by  the  county  court  of  common  pleas ;  and  the 
court  was  bidden  to  "  specially  take  care  that  no  tavern  be 
licensed  where  the  principal  business  contemplated  is  an 
habitual  resort  of  the  citizens  for  tippling  ardent  spirits,  wine, 
ale  or  beer,  or  any  other  intoxicating  liquors."4  In  1850  a 
new  departure  was  made  by  the  creation  of  a  board  of  excise, 
the  first  commissioners  being  named  by  the  legislature.5 

1  Constitution  of   1851,  art.  viii,  sec.  6:  "The   general   assembly  shall  never 
authorize  any  county,  city,  town,  or  township,  by  vote  of  its  citizens  or  otherwise, 
to  become  a  stockholder  in  any  joint-stock  company,  corporation,  or  association 
whatever  ;  or  to  raise  money  for,  or  loan  its  credit  to  or  in  aid  of,  any  such  com- 
pany, corporation  or  association." 

2  O.  L.  A.,  44  v.  167  ;  47  v.  146 ;  49  v.  452,  502. 

3  Ibid.,  43  v.  403.  *  Ibid.,  37  v.  383.  5  Ibid.,  48  v.  356. 


447]  IN  MICHIGAN  AND  OHIO.  j  29 

Their  successors  were  to  be  appointed  by  the  council  for 
three-year  terms,  one  retiring  each  year.  The  board  was  re- 
quired to  hold  quarterly  sessions,  and  "  grant  license  to  keep 
a  tavern,  porter-house,  or  house  of  entertainment  to  all  appli- 
cants therefor,  who,  by  the  testimony  of  witnesses  (to  whom 
said  board  is  hereby  authorized  to  administer  oaths),  shall 
show  to  the  satisfaction  of  the  commissioners,  such  applicant 
to  be  of  good  habits,  not  addicted  to  drinking,  and  who  would 
not  in  the  opinion  of  said  commissioners,  permit  or  suffer  any 
drunkenness,  riotous,  disorderly  or  licentious  conduct,  in  his 
or  her  house,  store  or  grocery,  or  on  the  premises  occupied 
by  him  or  her."  All  license  fees  and  fines  were  to  be  turned 
into  the  city  treasury. 

Changes  in  the  council  and  executive  offices.  By  a  charter 
amendment  of  1841,  the  members  of  the  council  were  pro- 
hibited from  receiving  pay,  and  the  maximum  salary  any 
municipal  officer  could  receive  was  fixed  at  5200.00  per  year.1 
In  1847  the  terms  of  the  aldermen  were  extended  to  three 
years,  one-third  of  the  aldermen  retiring  each  year.2  There 
seems  to  have  been  some  trouble  with  the  city  marshal,  for 
whereas  by  the  charter  of  1836,  he  had  been  an  elective  officer 
with  power  to  appoint  his  own  deputies,  both  he  and  they 
were  now  to  be  appointed  by  the  city  council.  In  1848  return 
•was  made  to  the  old  method  of  filling  the  office,  and  the 
council  was  given  power  to  remove  the  marshal  for  cause  after 
hearing  his  defense.3  His  salary  was  to  be  fixed  at  not  more 
than  $400.00,  while  his  deputies  were  limited  to  $100.00  a 
year.  Two  years  later,  in  1850,  Cleveland  township  was  in- 
corporated in  the  city,  four  wards  were  established  subject  to 
change  by  the  council,  and  the  number  of  councilmen  elected 
by  each  ward  was  reduced  to  two.4  In  this  same  year  the 
council  was  empowered  to  establish  a  board  of  health.5  The 
number  of  its  members,  their  official  terms,  compensation,  and 

1  O.  L.  A.,  37  v.  383.  *  Ibid.,  45  v.  135.  »  Ibid.,  46  v.  153. 

* Ibid.,  48  v.  364.  6  Ibid.,  48  v.  487. 


MUNICIPAL  GOVERNMENT  [448- 

to  some  extent  their  powers  were  left  to  the  discretion  of  the 
council.  In  1851  the  city  sexton  was  made  an  elective  officer.1 
Provision  was  also  made  for  the  union  of  Cleveland  and 
"  Ohio  city."2  The  new  territory  annexed  was  to  constitute 
two  new  wards,  thus  increasing  the  membership  of  the  council. 

Taxation.  An  unlimited  taxing  power  was  not  left  to  the 
city  council  long.  In  1841  five  mills  on  the  dollar  was  fixed 
as  the  maximum  rate.3  The  levy  determined  upon  was  to  be 
certified  by  the  mayor  to  the  county  auditor,  and  collected 
with  other  taxes  by  the  county  treasurer.  In  1847  the  tax 
rate  for  general  purposes  was  limited  to  two  mills  on  the  dol- 
with  four-fifths  of  a  mill  school  tax  and,  and  three- fourths  of  a 
mill  levy  to  pay  debts  already  contracted.4  These  levies  were 
to  be  determined  between  April  I  and  June  I  of  each  year, 
and  within  the  same  period  the  special  assessments  for  street 
improvements  were  to  be  fixed  for  the  year.  In  1850  the  tax 
limit  for  general  purposes  was  raised  to  three  mills  on  the  dol- 
lar.5 In  the  following  year,  certain  real  estate,  recently  an- 
nexed, was  made  subject  to  city  taxes  for  railroad,  school,  road 
and  poor  relief  purposes  only,  until  it  should  be  divided  and 
sold  or  improved  as  city  lots.6 

Special  assessments.  Methods  of  levying  special  assessments 
have  caused  Ohio  statesmen  a  good  deal  of  anxiety.  One  of 
the  mooted  points  has  been  the  incidence  of  that  part  of  the 
burden  of  a  local  improvement  resulting  from  the  payment  of 
damages  to  injured  individuals.  By  an  act  of  1849  this  part 
of  the  expense  in  Cleveland  was  to  be  paid  out  of  the  city 
treasury.?  In  1851  a  change  was  made  in  the  method  of  levy- 
ing assessments  for  local  improvements.8  On  petition  of  at 
least  twelve  freeholders  for  street  improvements,  the  council 
might  provide  for  the  payment  of  the  expense  by  the  peti- 
tioners, out  of  the  city  treasury,  or  by  a  discriminating  tax  if 

1 0.  L.  A.,  49  v.  1 14.  2  Ibid.,  49  v.  1 18.  3  Ibid.,  39  v.  66. 

*  Ibid.,  45  v.  1 35.  5  Ibid.,  48  v.  487.  6  Ibid.,  49  v.  1 1  4. 

1  Ibid.,  47  v.  204.  8  Ibid.,  49  v.  114. 


449 ]  W  MICHIGAN  AND  OHIO.  \  3  i 

the  petitioners  represented  one-third  in  value  of  the  property  to 
be  taxed.  Damages  to  individuals  were  to  be  added  to  the 
expense  of  the  improvement. 

The  mayor  s  court.  In  1841  jury  trial  was  granted  to  per- 
sons tried  before  the  mayor  for  violation  of  city  ordinances.1 
Ten  years  later  the  city  clerk  was  authorized  to  hold  the 
mayor's  court  and  was  given  concurrent  jurisdiction  with  the 
mayor  in  cases  of  ordinance  violation.2 

III.   Cleveland  under  general  laws,  1852  to  i8gi. 

We  have  now  reached  the  end  of  avowedly  special  legisla- 
tion for  Cleveland,  except  in  isolated  acts.  The  new  constitu- 
tion, adopted  in  the  year  185 1,  required  the  organization  of 
cities  by  general  laws.3  Cleveland  does  not  seem  to  have  suf- 
fered very  much  from  the  evils  of  special  legislation,  although 
within  the  years  immediately  preceding  the  adoption  of  the 
new  constitution  there  had  been  considerable  legislative  action, 
particularly  relative  to  the  excise  problem  and  special  assess- 
ments. But  on  the  whole  Cleveland  had  enjoyed  a  liberal  and 
carefully- framed  charter.  The  population  of  the  city  had  in- 
creased from  1,075  in  1830,  to  6,071  in  1840,  and  17,034  in 
1850.  This  was  still  a  small  population  compared  with  the 
great  aggregations  of  recent  decades,  but  the  period  of  rapid 
growth  had  set  in,  and  the  problems  of  municipal  government 
taxed  the  wisdom  of  the  legislature. 

The  general  act  of  1852.  By  the  general  act  of  1852  for  the 
organization  of  cities  and  villages  in  the  state  of  Ohio,  all  the 
special  acts  referring  to  city  charters  proper  were  swept  away.4 
Those  special  laws  which  had  dealt  with  subjects  local  in  their 
nature  and  under  which  important  rights  had  become  vested 
were  not  disturbed,  of  course.  But  a  general  organization  for 
cities  and  villages  according  to  classes  was  provided.  Cities 

1  O.  L.  A.,  39  v.  162.  *  Ibid.,  49  v.  1 14. 

3  Art.  xiii,  sees.  I  and  6.  4  Ohio  Laws,  50  v.  223-259. 


MUNICIPAL  GOVERNMENT  [450 

of  the  first  class  were  those  with  more  than  20,000  population, 
and  as  Cleveland  came  within  that  category  almost  at  once, 
we  need  speak  only  of  the  organization  and  powers  of  cities  of 
the  first  class. 

The  council,  its  organization  and  powers.  The  aldermen  of 
the  old  regime  were  done  away  with,  and  the  city  council  was 
made  to  consist  simply  of  the  two  trustees  chosen  from  each 
ward  for  terms  of  two  years,  half  of  them  retiring  every  year. 
Members  could  be  expelled  by  a  two-thirds  vote  of  all.  The 
council  was  also  given  power  to  remove  appointive  officers  by 
an  absolute  majority  vote,  and  elective  officers  by  an  absolute 
two-thirds  vote,  after  granting  them  a  hearing.  The  passage 
of  by-laws  and  ordinances  required  a  majority  vote  of  all  trus- 
tees after  three  readings  on  different  days,  unless  otherwise 
provided  by  three-fourths  vote.  Every  ordinance  was  to  have 
a  single  object,  expressed  in  its  title,  and  ordinances  amended 
or  revived  were  to  be  repeated  in  full.  Trustees  could  not  be 
appointed  to  any  municipal  office  during  their  term,  except  as 
provided  in  the  law,  and  they  were  forbidden  to  be  interested 
in  any  municipal  contract. 

Any  improvement  involving  the  condemnation  of  private 
property  required  a  two-thirds  vote  of  all  councilmen.  The 
same  majority  was  required  for  any  improvement  to  be  paid 
for  by  special  assessment,  unless  petitioned  for  by  two-thirds 
of  those  to  be  assessed.  Improvements  and  repairs  of  streets, 
bridges  and  sewers  could  be  undertaken  only  on  recommenda- 
tion of  the  board  of  city  improvements. 

The  executive  officejs  and  boards.  The  mayor  was  required 
in  cities  of  the  first  class  to  make  an  annual  report  to  the  coun- 
cil with  recommendations,  and  was  given  power  to  appoint  the 
chief  of  police  and  an  equal  number  of  watchmen  from  each 
ward  as  determined  by  the  council.  The  electors  were  to 
choose  for  terms  of  two  years,  the  mayor,  city  marshal,  civil 
engineer,  fire  engineer,  treasurer,  auditor,  solicitor,  police 
judge  and  superintendent  of  markets.  Upon  the  establish- 


45  I  ] 


IN  MICHIGAN  AND  OHIO. 


ment  of  water  works  the  council  was  required  to  establish  a 
board  of  three  water  works  trustees,  to  hold  for  three  years, 
and  to  be  elected  one  each  year.  Three  city  commissioners 
were  to  be  chosen  in  like  manner,  to  enforce  the  ordinances  of 
the  city,  superintend  the  cleaning,  improving  and  lighting  of 
the  streets,  commons,  etc.,  and  with  the  mayor  and  civil  engi- 
neer to  constitute  the  board  of  city  improvements.  The  coun- 
cil was  empowered  to  establish  within  the  city  or  county  an 
infirmary.  Its  management  and  the  granting  of  out-door  reliei 
were  to  be  placed  in  the  charge  of  a  board  of  three  directors, 
also  elected  one  each  year.  A  house  of  refuge,  a  house  of 
correction  and  workhouse,  or  a  city  prison,  could  likewise  be 
established,  and  placed  in  charge  of  a  board  of  directors.  The 
annual  election  was  to  be  held  in  April,  and  all  persons  resi- 
dent within  the  city  and  entitled  to  vote  for  county  officers 
were  to  be  electors. 

Taxation,  revenue  aad  finance.  The  limit  of  taxation  for 
general  purposes  was  placed  at  five  mills  on  the  dollar,  and  for 
special  funds  as  follows  :  Police  fund,  two  mills  ;  fire  depart- 
ment fund,  one  mill  ;  house  of  refuge,  house  of  correction, 
work  house  and  city  prison,  one  and  one-half  mills;  water 
works,  one-half  mill;  schools,  two  mills;  city  infirmary 
and  poor  relief,  two  mills  ;  sinking  fund,  one-half  mill  ;  inter- 
est fund  (required),  two  mills.  Taxes  could  be  levied  unifor- 
formly  on  lots,  platted  or  unplatted.  A  tax  on  dogs  and  other 
animals  not  on  the  state  and  county  tax  lists  was  authorized. 
Loans  to  the  amount  of  $100,000  annually  were  permitted, 
but  only  in  anticipation  of  revenue.  Appropriations,  when 
there  were  no  funds  in  the  treasury  to  pay  them,  were  to  be 
void. 

Perhaps  the  worst  feature  of  this  law  of  1852,  in  so  far  as  it 
was  intended  to  replace  special  legislation,  was  the  narrow 
limitation  of  the  borrowing  power,  and  the  minute  regulation 
of  the  tax  levy.  If  any  particular  city  should  need  to  under- 
take some  large  enterprise  necessitating  a  loan,  the  legislature 


MUNICIPAL  GOVERNMENT  [453 

would  have  to  be  specially  importuned  for  the  grant  of  power, 
and  this  would  certainly  prove  fatal  to  the  spirit,  if  not  the 
form,  of  general  legislation. 

Extension  of  the  borrowing  power.  The  very  next  year  after 
the  passage  of  the  general  act  of  1852,  it  was  found  necessary 
to  extend  the  borrowing  powers  of  cities.  By  the  amending 
act  of  March  11,  1853,*  any  city  not  already  having  water 
works  was  authorized  to  borrow  $500,000  for  their  construc- 
tion. Running  expenses  were  to  be  met  by  water  rents,  and 
a  sinking  fund  was  to  be  provided  by  special  tax.  Cities  were 
also  empowered  to  borrow  money  for  the  purchase  of  school 
lands  and  the  erection  of  school  buildings,  while  cities  of  the 
first  class  were  authorized  to  procure  a  loan  of  $500,000  for 
public  wharves,  squares,  parks  or  market  places.  In  1856^ 
and  again  in  i86o,3  the  city  councils  of  cities  having  water 
works  were  authorized  to  borrow  money  for  the  purpose  of 
constructing  main  sewers.  An  act  of  1879  Save  to  all  muni- 
cipal corporations  the  power  to  issue  bonds  for  local  improve- 
ments.4 A  two-thirds  vote  of  the  electors  was  first  required, 
and  the  bonds  could  not  be  sold  below  par,  or  carry  more 
than  six  per  cent,  interest.  The  authorized  objects  of  the 
issue  included  the  erection  of  various  public  buildings,  the 
purchase  of  sites,  construction  of  bridges,  turnpike  roads,  etc., 
the  refunding  of  debt,  and  the  making  of  any  local  improve- 
ment authorized  by  law.  Besides  these  general  provisions,  a 
great  many  special  bond  issues  were  authorized  for  Cleveland 
from  year  to  year,  for  the  improvement  of  the  water  works,5 
the  construction  of  bridges,6  elevated  railroads,7  market  build- 
ings,8 a  drainage  conduit,9  etc.  In  1885,  loans  were  author- 
ized to  meet  the  current  expenses  of  the  city  government.10 

1O.  L.,  51  v.  360-374.  *  Ibid.,  53  v.  185.        3  Ibid.,  57  v.  53. 

4  Ibid.,  76  v.  158.  5  Ibid.,  69  v.  13  ;  79  v.  112.     6  Ibid.,  69  v.  138. 

7  Ibid.,  80  v.  159.  8  Ibid.,  8 1  v.  185. 

9  Ibid.,  82  v.  250.  10  ibid.,  82  v.  86. 


453  IN  MICHIGAN  AND  OHIO.  !  3  5 

Taxation  and  finance.  In  1856,  the  limit  of  taxation,  not 
including  school,  debt  and  special  assessment  levies,  was 
placed  at  five  mills  on  the  dollar.1  The  tax  limit  was  again 
disturbed  in  1862,  this  time  being  fixed  at  four  mills,  not  in- 
cluding an  extra  one-half  mill  for  lighting.3  An  important 
era  in  Cleveland's  financial  administration  was  opened  by  the 
establishment  of  the  sinking  fund  commission  in  this  year,  to 
which  the  city's  railroad  stocks  were  turned  over.3  In  twenty 
years  this  fund  increased  from  $361,377  to  $2,700,000,  at  an 
expense  of  only  $600  for  management.4  The  five  commis- 
sioners were  named  in  the  act,  to  hold  their  places  perma- 
nently. Ordinary  vacancies  were  to  be  filled  by  cooptation, 
with  the  consent  of  the  council,  while  the  court  of  common 
pleas  of  Cuyahoga  county  could  remove  any  member  for  cause 
on  complaint  of  the  council,  and  appoint  his  successor.  In 
the  years  following  this  act  the  General  Assembly  fixed  the 
tax  limit  almost  every  year,  usually  raising  the  maximum  ag- 
gregate or  adding  a  special  fund.  By  the  municipal  code  of 
1869,5  the  limit  of  taxes  for  general  purposes  was  fixed,  then 
the  limits  of  the  annual  levy  for  ten  special  purposes  were 
fixed,  and  finally  the  maximum  aggregate  levy  for  each  of 
twenty-three  more  special  purposes  was  determined.  At  the 
same  time  the  limit  of  loans  permitted  in  anticipation  of  reve- 
nue was  raised  to  $200,000.  A  year  later  five  new  tax  limits 
of  annual  levies  for  special  purposes  were  added.6  A  limit 
was  also  fixed  for  the  aggregate  annual  levy.  By  an  act  of 
1883,7  a  new  method  of  supervising  taxation  was  adopted  in 
the  creation  of  a  tax  commission,  consisting  of  the  mayor,  au- 
ditor, and  three  citizens  appointed  by  the  superior  court  of 
Cleveland.8  No  tax  could  be  levied  by  the  council,  school 

1  O.  L.,  53  v.  214.  *  Ibid.,  59  v.  72.  8  Ibid.,  59  v.  126. 

4  E.  M.  Avery,  "  Cleveland  in  a  Nutshell." 

5O.  L.,  66  v.    145-286.  •  Ibid.,  67  v.  68.  T  Ibid.,  So  v.  124. 

8  The  Superior  Court  of  Cleveland  was  established  in  the  year  1873.     O-  L., 
70  v.  297. 


136  MUNICIPAL  GOVERNMENT  [454 

board  or  any  other  city  authority  without  the  approval  of  this 
commission.  The  functions  of  this  commission  seem  to  have 
been  chiefly  legal,  to  see  that  any  attempted  taxation  was  duly 
authorized.  In  1890,  however,  the  tax  commission  was  di- 
rected to  appoint  twenty  assessors  for  Cleveland,  equally  from 
the  two  political  parties  which  cast  the  highest  vote  at  the 
preceding  county  election.1  Public  employment  or  office  of 
any  kind  was  made  a  bar  to  these  appointments. 

Deposits,  contracts  and  appropriations.  By  an  act  of  1888  a 
depositary  commission,  to  be  composed  of  the  mayor,  the 
president  of  the  board  of  education,  and  the  city  solicitor,  was 
required  to  receive  bids  from  the  various  banks  for  the  de- 
posit of  the  public  moneys.2  A  very  rigid  system  of  daily 
payments  to  the  city  treasurer  by  the  several  departments, 
daily  deposits  by  him,  daily  statements  by  him  and  also  by 
the  depositary  to  the  city  auditor,  and  sworn  monthly  state- 
ments by  the  city  auditor,  was  inaugurated.  Two  years  later 
it  was  made  unlawful  for  any  officer,  councilman  or  member 
of  an  executive  board  to  contract  or  vote  to  contract,  or  to 
incur  any  expense  or  liability  whatever,  beyond  the  amount 
regularly  and  lawfully  set  apart  for  the  particular  department 
concerned.3  It  was  to  be  unlawful  for  any  officer  to  contract 
to  pay  any  money  not  already  in  the  public  treasury  to  the 
credit  of  the  department,  and  unappropriated.  Another  act 
passed  in  1890  required  the  city  council,  by  the  first  week  of 
each  fiscal  half-year,  to  make  "  detailed  and  specific  appropria- 
tions for  the  several  objects  for  which  the  city  has  to  provide, 
apportioned  to  each  month,  of  the  moneys  known  to  be  in  the 
treasury,  or  estimated  to  come  into  it  during  the  six  months 
next  ensuing."4  This  action  was  to  be  submitted  to  the  tax 
commissioners  for  approval,  amendment  or  rejection.  Ex- 
penditures for  the  next  six  months  had  to  be  kept  within  the 
appropriations,  and  balances  left  over  at  the  end  of  the  year 

1  O.  L.,  87  v.  138.  *  Ibid.,  85  v.  197. 

3  Ibid.,  87  v.  96.  *  Ibid.,  87  v.  342. 


455]  IN  MICHIGAN  AND  OHIO. 

unexpended  were  to  be  recredited  to  the  funds  from  which 
they  were  taken. 

Special  assessments.  In  the  act  of  1856  authorizing  the 
construction  of  sewers,  it  was  provided  that  special  assess- 
ments for  street  improvements  should  not  exceed  fifty  per 
cent,  of  the  value  of  the  lot  on  which  they  were  levied,  to  be 
ascertained  after  the  completion  of  the  improvement.1  Excess 
costs  were  to  be  a  charge  upon  the  general  treasury.  An  act 
of  1860  authorized  the  council  to  divide  the  city  into  six  main 
sewer  districts,  and  levy  sewer  taxes  in  the  several  districts  in- 
dependently.2 The  general  expense  of  any  main  sewer  could 
be  lessened  by  the  levy  of  a  special  assessment  equal  to  the 
estimated  cost  of  an  equal  length  of  branch  sewers.  In  1865, 
the  city  was^authorized  to  have  its  streets  sprinkled  on  petition 
of  a  majority  of  adjacent  owners,  and  to  pay  the  expense  by  a 
special  tax  per  foot  front.3  It  was  enacted  in  1870  that 
special  assessments  should  be  limited  to  twenty-five  per  cent, 
of  the  taxable  valuation  of  the  property  on  which  they  were 
levied.4  And  no  person  could  be  compelled  to  pay  in  any  one 
year  more  than  one-tenth  of  the  taxable  valuation  of  his  prop- 
erty for  local  improvements.  But  a  year  later  the  valuation 
was  again  allowed  to  be  determined  after  the  completion  of  the 
improvement.5  An  act  of  1875  required  that  the  cost  of  im- 
proving street  intersections  should  be  a  general  charge,  and  in 
addition  at  least  one-fiftieth  of  the  total  expenses  for  a  street 
improvement,  not  including  sidewalks,  was  to  be  paid  from  the 
city  treasury.6  In  1881  an  act  provided  that  one-half  the 
costs  of  repaving  should  be  paid  from  a  tax  levied  on  the  gen- 
eral property  duplicate.7 

Reports  to  the  State  Auditor.  The  nearest  approach  to  state 
supervision  over  city  administration,  except  by  the  Legislature,. 

1  O.  L.,  53  v.  185.  »/<JiV/.,  57  v.  53.  *  Ibid.,  62  v.  180. 

«  Ibid.,  67  v.  68.  »  Ibid.,  68  v.  1 25. 

9 Ibid.,  72v.  24.  1  /&/</.,  78  v.  136. 


MUNICIPAL  GOVERNMENT  [456 

that  I  have  found  in  either  Michigan  or  Ohio,  was  provided 
for  by  the  Ohio  law  of  April  5,  1856.*  One  section  provided 
that  "  the  city  clerk  of  each  city  of  the  first  and  second  class 
shall,  on  or  before  the  first  Monday  in  June,  report  to  the  audi- 
tor of  the  state,  the  aggregate  expenses  of  such  city  for  the 
preceding  year  under  the  following  heads:  schools,  police, 
streets,  bridges,  fire  department,  lights,  poor,  salaries  and  in- 
terest, and  also  the  amount  of  the  general  city  tax  for  all  the 
preceding  objects  and  for  any  others  not  enumerated,  and  the 
special  taxes  of  the  city  for  the  same  period,  and  the  popula- 
tion of  the  city.  Any  city  clerk  who  shall  neglect  to  make 
report  as  above  provided,  shall  forfeit  and  pay  the  sum  of  $IOO, 
to  be  recovered  before  any  court  having  jurisdiction  of  the  sub- 
ject matter  in  the  name  and  for  the  use  of  the  city."  This 
provision  is  still  in  force  in  Ohio,  but  does  not  seem  to  have 
had  any  very  important  results. 

The  board  of  revision.  By  this  act  of  April  5,  1856,  it  was 
also  provided  that  "  the  mayor,  the  president  of  the  council 
and  the  city  attorney  shall  constitute  a  board  of  revision, 
which  shall  meet  as  often  as  once  in  every  month,  to  review 
the  proceedings  of  the  council,  and  of  all  other  departments  of 
the  city  government,  and  report  to  the  council  whether  any 
department  of  the  city  government  has  transcended  its  powers, 
whether  any  officer  has  neglected  his  duties,  and  also  report 
whether  any,  and  what  retrenchments  in  the  expenses  of  the 
city,  and  what  improvements  in  any  of  the  departments  of  its 
government  can  be  made."  This  provision  was  calculated  to 
insure  a  careful  and  unified  city  administration,  if  we  take  for 
granted  high  character  and  ability  in  its  members  and  the 
other  city  officers.  In  1886  an  act  was  passed  giving  the 
board  of  revision  full  authority  to  prescribe  to  the  several  de- 
partments of  the  city  government,  the  forms  for  their  books, 
accounts,  reports,  etc.,  and  to  formulate  and  enforce  a  uniform 
system  of  accounting.2  By  an  act  of  i887  the  board  of  revis- 

1  O.  L.,  53  v.  57.  *  /£*</.,  83  v.  169. 


457]  IN  MICHIGAN  AND  OHIO. 

ion  was  authorized  to  spend  each  year  a  maximum  of  £1,000 
for  attorney,  stenographer  and  incidental  expenses  in  conduct- 
ing investigations.1  Persons  refusing  to  testify  before  the 
board  could  be  committed  to  jail  for  contempt. 

The  appointment  of  officers.  An  act  of  1856  made  the  city 
clerk  an  appointee  of  the  council,  and  also  required  the  coun- 
cil to  choose  the  civil  engineer,  and  to  designate  one  of  the 
city  commissioners  to  be  acting  commissioner,  while  the  two 
others  were  to  become  merely  advisory  officers.2  The  same 
change  was  to  be  made  in  the  board  of  infirmary  directors. 
In  1858  the  superintendent  of  markets  became  an  appointee  of 
the  counci'1,3  but  in  1863  the  appointment  of  this  officer  as 
well  as  that  of  the  civil  engineer  and  the  fire  engineer  was  con- 
ditioned on  the  mayor's  recommendation.4  A  board  of  health 
was  provided  for  by  general  law  in  1867.5  The  mayor  was  to 
be  ex  officio  its  president,  but  the  six  other  members  were 
made  appointees  of  the  council  for  terms  of  two  years.  The 
board  of  directors  of  the  house  of  correction  authorized  soon 
after  for  Cleveland  was  to  consist  of  the  mayor,  and  four  resi- 
dent freeholders  appointed  by  the  council  on  his  nomination.6 
By  the  provisions  of  the  municipal  code  of  1869,7  of  the  gen- 
eral officers  provided  for  cities  of  the  first  class,  seven  were  to 
be  elected,  four  appointed  by  the  mayor  with  the  council's 
consent,  and  two,  the  clerk  and  the  auditor,  were  to  be  chosen 
by  the  council  itself.  Other  offices  to  be  established  by  ordi- 
nances were  to  be  filled  by  appointment  of  the  mayor  subject 
to  the  council's  approval.  No  less  than  eleven  administrative 
boards  were  provided  for  in  the  code,  four  of  them  to  be 
elected,  four  appointed  by  the  mayor  and  council,  one  ap- 
pointed by  the  council,  and  two  composed  chiefly  of  ex  officio 
members.  By  an  act  of  the  next  year,  the  auditor,  clerk, 
solicitor,  treasurer,  clerk  of  the  police  court,  and  civil  engineer 

1  O.  L.,  84  v.  32.  J  Ibid.,  53  v.  57.  s  Ibid.,  55  v.  70. 

*  Ibid.,  60  v.  5 1.  &  Ibid.,  64  v.  76. 

6  Ibid.,  64  v.  130.  T  Ibid.,  66  v.  145-286. 


MUNICIPAL  GOVERNMENT  [45 8 

were  given  the  right  to  appoint  the  subordinates  in  their  re- 
spective departments,  subject  to  the  council's  approval.1  It 
was  also  provided  that  a  board  of  sewer  commissioners,  to  be 
composed  of  five  members  appointed  by  the  mayor  and  coun- 
cil, might  be  established  by  ordinance.  In  1876  the  one  popu- 
larly elected  member  of  the  board  of  improvements  was  made 
an  appointee  of  the  council.2  By  the  new  code  of  1878  the 
civil  engineer  again  became  an  appointee  of  the  council.3  A 
platting  commission  which  had  been  established  four  years  be- 
fore to  be  appointed  by  the  council,4  was  now  to  consist  of 
three  members  appointed  by  the  mayor  subject  to  the  confir- 
mation of  the  council.  An  act  of  1883  required  that  no  more 
than  three  of  the  five  infirmary  directors  should  be  appointed 
from  the  same  political  party.5  Three  years  later  a  bi-partisan 
board  of  elections  to  consist  of  four  members  appointed  by  the 
governor  was  established.6  This  board  was  to  appoint  all  of 
the  election  judges  and  clerks  in  the  various  precincts  of  the 
city. 

The  control  of  the  council  over  the  administration.  Aside 
from  its  powers  of  appointment,  which,  as  we  have  just  seen,, 
were  considerable,  especially  in  the  first  part  of  this  period,  the 
council,  as  the  central,  permanent  body  in  the  city  govern- 
ment, was  given  quite  a  large  control  over  the  action  of  the- 
administrative  officers  and  boards.  By  the  act  of  18537  the 
water  works  trustees  were  required  to  report  monthly  and  an- 
nually to  the  city  council,  which  was  given  the  right  to  ap- 
point a  committee  to  investigate  the  water  administration  once 
a  year  or  oftener.  In  1 86 1 ,  the  board  of  city  commissioners  was 
abolished,  and  the  board  of  improvements  was  henceforth  to 
consist  of  the  mayor,  the  civil  engineer,  the  chairman  of  the 
council  committee  on  streets,  and  one  street  commissioner 
elected  for  two  years.8  In  like  manner,  the  chairman  of  the 

1  O.  L.,  67  v.  68.  "*  Ibid.,  73  v.  143.  *  Ibid.,  75  v.  161-419. 

*  Ibid.,  71  v.  1 1 6.  5  Ibid.,  80  v.  46.  •  Ibid.,  83  v.  1 1. 

1 1bid.,  51  v.  360-374.  8  Ibid.,  58  v.  25. 


.459]  IN  MICHIGAN  AND  OHIO.  !4I 

-council  committee  on  infirmary  was  given  a  place  on  the  board 
of  infirmary  directors,  along  with  the  superintendent  of  in- 
firmary, and  one  director  elected  for  two  years.  When  the 
board  of  health  was  established,  an  annual  report  to  the  coun- 
cil was  required,  but  that  body  could  not  refuse  to  pay  the 
health  bill.1  Similar  provisions  were  put  in  force  in  regard  to 
the  directors  of  the  house  of  correction,  authorized  in  1867.* 
In  the  following  year,  the  board  of  education,*  which  had  been 
established  in  1859,  to  consist  of  one  member  from  each  ward, 
was  given  a  much  more  independent  position  than  heretofore.4 
The  council's  approval  was  required  only  for  the  most  import- 
ant financial  measures,  such  as  the  purchase  of  sites  and  the 

•  erection  of  school   buildings.     By  the  code  of  1869,5  tne  au- 
ditor, solicitor  and  civil  engineer  were  given  seats  in  the  coun- 
cil without  vote,  for  deliberation  on  questions  affecting  their 

respective  departments.  The  action  of  most  of  the  boards  pro- 
vided for  in  this  code  was  made  subject  in  part  to  the  approval 
of  the  council.  In  1870,  the  mayor  was  given  a  seat  in  the 
council  without  vote.6  A  law  passed  in  1 876  forbade  the  coun- 
cil to  delegate  its  contract  power,  and  required  a  majority  vote 
of  the  whole  council  to  make  contracts  and  adopt  ordinances.7 
Contracts  made  in  violation  of  these  provisions  were  to  be 
void  as  against  the  corporation,  but  binding  on  the  contractor. 
In  1 88 1,  the  council  was  required,  upon  the  estimate  of  the 
board  of  improvements,  to  provide  for  the  cost  of  the  street 
cleaning  service,  which  was  hereafter  to  be  done  by  the  street 

•  commissioner,  and  not  by  contract.8     Only  in  a  few  such  cases 
as  this  was  the  council  deprived  of  its  financial  discretion.    On 
the  whole,  with   the  constant  changing  of  the  administrative 
organization,  the  council  maintained  a  fair  degree  of  control 

•  over  the  most  important  municipal  affairs. 

General  p<nvers  of  the  city.     The  law  of  1853  gave  the  coun- 

1  O.  L.,  64  v.  76.  2  Ibid.,  64  v.   130.  3  Ibid.,  56  v.  281. 

*  Ibid.,  65  v.  236.  *Ibid.,  66  v.  145-286.  •  Ibid.,  67  v.  68. 

-1  Ibid.,  73  v.  125.  8  Ibid.,  84  v.  67. 


MUNICIPAL  GOVERNMENT 


[460 


cil  an  important  control  over  the  gas  supply.1  The  council 
was  authorized  to  fix  the  maximum  charge  for  gas  and  rent: 
for  gas  meters,  and  appoint  inspectors  to  certify  the  correct- 
ness of  bills  against  consumers.  By  a  law  of  the  following 
year,  the  price  of  gas,  once  fixed  and  accepted  by  the  gas  com- 
pany, could  not  be  changed  within  ten  years  unless  agreed 
upon.2  By  an  act  of  1857,  no  land  could  be  annexed  to  any 
municipal  corporation  without  the  consent  of  three-fourths  of 
the  voters  resident  on  the  land  to  be  annexed.3  In  1868  the 
city  was  authorized  to  enter  into  an  agreement  with  a  charit- 
able organization  for  the  erection  and  management  of  a 
hospital,  to  be  partly  supported  by  public  funds4  In  the  code 
of  1869,  besides  being  given  the  customary  police  powers,  the 
municipality  was  authorized  to  construct  canals,  sewers,  hos- 
pitals, jails,  market  houses,  water  works,  gas  works,  public 
halls  and  school  buildings  ;  to  provide  parks,  public  cemeteries, 
and  free  public  libraries  ;  and  to  establish  health,  fire  and  police 
departments.  In  1875  Cleveland  was  authorized  to  establish 
industrial  schools  for  the  benefit  of  destitute  and  neglected 
children.5  A  year  later  the  board  of  improvements  was  re- 
quired to  divide  the  city  into  districts  and  contract  for  the 
repair  and  cleaning  of  the  streets,  and  the  removal  of  garbage.6 
An  important  law  was  passed  in  1879  with  reference  to  street 
railways.7  The  franchise  could  not  be  given  except  after  ad- 
vertising, and  then  only  to  the  corporation  or  individual 
which  offered  the  lowest  fares,  and  had  secured  the  written 
consent  of  the  owners  of  a  majority  of  the  feet  front  along 
the  proposed  line.  No  franchise  could  be  granted  for  more 
than  twenty  years,  and  after  the  grant  the  council  was  for- 

1  O.  L.,  51  v.  360—374.  Cleveland  is  said  to  have  had  cheaper  gas  than  any 
other  city  in  the  United  States,  save  Pittsburg.  See  Griswold,  "  The  Corporate 
Birth  and  Growth  of  the  City  of  Cleveland,"  West.  Res.  and  N.  O.  Hist.  Soc... 
Tract  No.  62. 

*O.  L.,  52  v.  30.  3  Ibid.,  54  v.  85.  *  Ibid.,  65  v.  83. 

5  Ibid.t  72  v.  211.  6  IbU.,  74  v.  103.  7  Ibid.,  76  v.  156.. 


46  1  ] 


IN  MICHIGAN  AND  OHIO. 


bidden  to  release  the  grantee  from  any  of  the  obligations  im- 
posed by  the  agreement. 

The  police  department.  The  still  crude  condition  of  police 
organization  was  shown  by  an  act  of  1854,  which  authorized 
the  city  council  to  provide  for  the  election  or  appointment  by 
the  mayor  of  a  chief  of  police,  lieutenants,  and  an  equal  num- 
ber of  night  watchmen  from  the  several  wards,  to  hold  for  one 
year.1  Two  years  later  the  mayor  was  to  appoint  the  chief  of 
police  and  assistants  with  the  advice  of  the  council."  By  1866 
the  question  of  police  administration  was  becoming  important. 
The  Assembly  in  that  year  provided  a  "  metropolitan  "  board 
for  Cleveland,  to  be  composed  of  the  mayor,  ex-officio,  and 
four  members  appointed  by  the  Governor  for  eight-year  terms, 
one  retiring  every  two  years.3  The  Governor  had  also  the 
power  of  removal  for  good  cause.  The  authorized  expenses 
of  the  board,  including  certain  specified  extras,  were  made  a 
city  charge  without  the  discretion  of  the  council.  Maximum 
salaries  were  fixed.  This  system  seems  to  have  caused  dis- 
satisfaction, for  two  years  after  its  adoption  the  city  council 
was  authorized  to  remove  police  commissioners  for  good  cause 
by  a  three-  fourths  vote  of  all,  and  was  required  to  divide  the 
city  immediately  into  four  districts  in  each  of  which  a  commis- 
sioner should  be  chosen  at  the  next  election.4  Meanwhile  all 
the  powers  of  the  metropolitan  board  were  vested  in  the  mayor. 
In  1876  the  functions  of  the  health  board  were  transferred  to- 
the  police  commissioners,5  but  a  separate  board  of  health  was 
again  established  in  i88o.6 

The  fire  department.  An  act  of  1865  required  the  mayor, 
the  civil  engineer  and  the  chief  fire  engineer  to  examine  halls, 
churches,  theaters,  etc.,  and  to  give  certificates  showing  these 
structures  to  have  abundant  means  of  ingress  and  egress  in 
case  of  danger  or  alarm.7  In  the  year  1874  a  board  of  five 

1  0.  L.,  52v.  47.  *  Ibid.,  53  v.  57.  3  Ibid.,  63  v.  104. 

4  Ibid,,  65  v.  45.  5  Ibid.,  73  v.  47. 

6  Ibid.,  77  v.  89.  T  Ibid,,  62  v.  139. 


MUNICIPAL  GOVERNAIENT 


[462 


fire  commissioners  was  established,  to  consist  of  the  mayor  as 
president,  the  chairman  of  the  council  committee  on  fire  and 
water,  and  three  resident  freeholders  appointed  by  the  mayor 
and  council.1  Contracts  for  more  than  $500  required  the 
•council's  approval.  The  board  was  to  appoint  the  chief  of  the 
fire  department  and  his  subordinates.  But  "no  officer  or  mem- 
ber shall  be  appointed  or  removed  on  account  of  his  religious 
or  political  opinions,  nor  participate  in  the  political  campaigns 
•or  conventions  of  any  political  party  whatever."  This  was  the 
first  of  a  series  of  attempts  to  put  firemen  and  policemen  be- 
yond the  influence  of  party  politics.  The  mayor  was  removed 
from  the  fire  board  in  1876,  and  his  place  was  supplied  by 
another  elective  member.2  It  was  deemed  necessary  to  add  to 
the  non-partisan  clause,  —  "  but  the  right  of  each  officer  and 
member  to  vote  at  any  election  as  he  may  for  himself  deter- 
mine shall  remain  inviolate."  By  an  act  of  1881,  the  mayor, 
fire  marshal  and  assistant  fire  marshal  were  constituted  a 
board  of  examiners  of  insecure  and  unsafe  buildings.3  In 
1886  the  constitution  of  the  fire  commission  was  changed  to 
adjust  itself  to  the  bicameral  council.4  The  mayor  was  to  be 
president,  and  the  chairmen  of  the7  committees  on  fire  and  water 
of  the  two  council  chambers,  together  with  four  elected  mem- 
bers, made  up  the  commission.  Two  years  later  a  system  of 
building  regulations  was  adopted,  and  the  appointment  of  a 
building  inspector  and  assistants  by  the  mayor  and  council  was 
authorized.5 

The  bicameral  experiment.  We  have  already  seen  that  in 
1885  special  laws  were  required  to  meet  current  expenses  in 
Cleveland.  Probably,  as  a  result  of  such  financial  mismanage- 


1  O.  L.,  71  v.  38.  *  Ibid.fjT,  v.  76.  3  Ibid.,  78  v.  76. 

4  Ibid.,  83  v.  184.     By  an  act  of  the  same  year  (O.  L.,  83  v.  198)  the  chairmen 
•of  the  two  committees  on  streets  were  made  members  of  the  board  of  improve- 
ments in  like  manner. 

5  O.  L.,  85  v.  289. 


463] 


IN  MICHIGAN  AND  OHIO, 


ment,  the  General  Assembly  created  a  second  chamber  of  the 
council  as  a  check  on  hasty  and  extravagant  action.1  As  now 
•constituted,  the  board  of  aldermen  was  to  be  composed  of  nine 
members  elected  by  districts  for  two  year  terms,  while  the 
board  of  councilmen  was  to  be  composed  of  one  member  from 
•each  ward,  also  elected  for  two-year  terms,  but  in  the  alternate 
years.  Within  ten  days  after  election  each  chamber  was  to 
assemble  for  organization  and  elect  a  president  and  vice-presi- 
dent by  vive  voce  vote.  Ordinances  might  originate  or  be 
amended  in  either  chamber,  but  had  to  be  passed  by  both,  and 
the  interval  of  at  least  a  week  was  required  between  the  action 
-of  the  two  chambers  on  any  ordinance  involving  expense  or 
creating  an  obligation.  Each  board  was  to  meet  at  least  twice 
•each  month,  but  never  on  the  same  or  succeeding  days,  ex- 
cept in  joint  session.  An  absolute  majority  vote  of  each 
board  was  required  for  the  passage  of  an  ordinance  involving 
expenditure  ;  and  the  mayor  was  given  the  itemized  veto- 
power  over  all  important  ordinances,  except  for  special  assess- 
ments, subject,  as  usual,  to  a  re-passage  by  absolute  two- 
thirds  majorities  after  the  lapse  of  at  least  ten  days  from  the 
receipt  of  the  veto  message.  All  elections  of  city  officers  and 
•confirmations  of  official  appointments  vested  in  the  council 
were  to  be  made  in  joint  session.  In  1887,  the  number  of 
aldermen  was  increased  to  fifteen,  to  be  elected  in  three  dis- 
tricts,2 but  two  years  later  this  upper  chamber  of  the  council 
was  abolished.3 

Increasing  powers  of  tlie  mayor.  Even  the  new  charter  of 
Cleveland,  adopted  in  1891,80  Gallican  in  its  radical  recon- 
structiveness,  was  preceded  by  legislation  tending  to  unify  the 
administration.  We  have  already  noticed  the  increased 
powers  given  to  the  board  of  revision  in  1886  and  1887  and 
the  stringent  financial  measures  of  1888  and  1890.  The  in- 
crease of  the  mayor's  powers  is  also  to  be  noticed.  In  1856 
iie  had  been  made  president  of  the  council  by  an  act  referring 

1  O.  L.,  82  v.  1  1  1.  *  Ibid.,  84  v.  125.  *  Ibid.,  86  v.  277. 


MUNICIPAL  GOVERNMENT 


[464 


to  Cleveland  alone.1  He  lost  this  position  through  some  of  the 
changes  in  the  general  law,  but  was  given  a  seat  in  the 
council  without  vote  again  in  i8/o.2  By  the  code  of  18693  he 
had  been  an  ex-officio  member  of  four  of  the  executive  boards,. 
while  from  time  to  time  his  powers  of  appointment  had  been 
extended  at  the  expense  of  the  council.  In  1889  the  accounts 
of  the  city  were  put  in  charge  of  a  comptroller,  "  appointed  by 
the  mayor  without  the  advice  and  consent  of  the  council,  on 
the  first  Monday  in  May,  1890,  and  every  three  years  there- 
after."4 This  officer  could  also  be  removed  by  the  mayor  for 
incompetency.  An  act  of  1890  gave  the  mayor  a  veto  on 
orders  of  the  police,  health  and  fire  boards,  involving  expendi- 
ture, subject  to  a  four-fifths  vote  of  the  board  concerned.5 

IV.  The  charter  of  1891. 

The  act  of  March  16,  1891,  "to  provide  a  more  efficient 
government  for  the  cities  of  the  second  grade  of  the  first  class," 
was  one  of  the  most  important  and  sweeping  municipal  acts 
ever  passed  by  an  American  legislature.6  The  organization  of 
the  city  government  of  Cleveland  was  recast.  The  law  cov- 
ering less  than  twenty  pages,  was  a  remarkably  concise  docu- 
ment for  an  American  city  charter.  This  was  partly  due  to  the 
fact  that  the  general  powers  and  duties  of  municipalities  are 
prescribed  in  Ohio  by  the  municipal  code.  The  fundamental 
principles  of  the  new  charter  were  the  separation  of  the  execu- 
tive and  legislative  departments  and  the  complete  unification  of 
the  administration  under  the  mayor. 

The  legislative  department.  The  first  eleven  sections  of  the 
act  refer  to  the  legislative  functions  of  the  city  government. 
These  are  vested  in  a  council  of  twenty  members  elected  in  ten 
districts  for  terms  of  two  years,  half  retiring  each  year.7 

1  O.  L.,  53  v.  57.  2  Ibid.,  67  v.  68.  8  Ibid.,  66  v.  145-286. 

«  Ibid.,  86  v.  366.  &  Ibid.,  87  v.  343.  «  Ibid.,  88  v.  105-121. 

7  The  number  of  councilmen  has  since  been  increased  to  twenty-two. 


465]  IN  MICHIGAN  AND  OHIO. 

Members  are  required  to  be  residents  of  their  respective  dis- 
tricts. The  council  chooses  its  own  president  and  vice-presi- 
dent, and  may  elect  a  sergeant-at-arms  and  a  page.  It  also 
elects  the  city  clerk.  Except  as  specifically  provided  in  this 
law,  the  council  can  exercise  no  power  of  election  or  appoint- 
ment to  any  office.  It  must,  however,  establish  and  maintain 
a  police  force  and  a  fire  force,  and  provide  for  the  appointment 
of  a  health  officer  and  subordinates.  It  may  also  provide  for 
appointment  of  officers  to  enforce  laws  in  regard  to  markets, 
city  scales,  sealing  of  weights  and  measures,  harbors  and 
wharves,  consumption  of  smoke  and  examination  of  stationary- 
engineers,  and  such  other  officers  in  the  several  departments 
as  it  may  deem  necessary  for  the  good  government  of  the 
corporation  and  the  full  exercise  of  its  corporate  powers ;  and 
it  may  prescribe  their  duties  and  fix  their  compensation. 
Every  ordinance,  resolution  or  order  involving  expenditure, 
making  a  contract,  imposing  a  tax  or  penalty,  fixing  water 
rent,  or  granting  a  franchise,  must  be  introduced  at  least  a 
week  before  its  passage,  and  unless  it  relates  to  an  improve- 
ment or  assessment  recommended  by  the  board  of  control, 
must  be  submitted  to  the  mayor  for  his  approval  or  veto- 
within  ten  days.  He  may  approve  or  disapprove  independent 
appropriation  items.  But  the  council  by  an  absolute  two- 
thirds  majority  may  pass  any  measure  over  his  veto,  after  at 
least  a  week's  further  consideration.  All  general  ordinances 
and  those  providing  for  improvements  to  cost  $500  or  more 
must  be  published  in  at  least  two  daily  newspapers  of  opposite 
politics  in  the  city.  The  council  or  any  authorized  council 
committee  is  given  power  to  conduct  investigations,  subpoena 
witnesses,  compel  the  production  of  books,  commit  for  con- 
tempt, etc.  No  witness  may  be  excused  from  testifying,  but 
his  testimony  cannot  be  used  in  criminal  proceedings  against 
himself,  except  for  perjury. 

The  executive  department.     The  executive  power  of  the  city- 
is  vested  in  the  mayor,  heads  of  departments,  and  other  officers 


MUNICIPAL  GOVERNMENT  [466 

provided  for.  The  mayor,  treasurer,  police  judge,  prosecuting 
attorney  of  the  police  court,  and  clerk  of  the  police  court, 
are  elected  by  the  people  as  formerly.  The  most  im- 
portant change  in  the  charter  is  to  be  found  in  the  estab- 
lishment of  departments  in  imitation  of  the  "  Federal " 
government.  They  are  six  in  number,  namely,  public 
works,  police,  fire,  accounts,  law,  and  charities  and  correc- 
tions. At  the  head  of  each  department  is  a  director  ap- 
pointed by  the  mayor,  with  the  council's  advice  and  consent, 
to  hold  until  the  expiration  of  the  official  term  of  the  mayor 
appointing  him.  Each  director  is  required  to  give  a  $20,000 
bond  approved  by  mayor  and  council.  The  salary  of  the 
mayor  is  $6.000 ;  that  of  the  director  of  law,  $5,000;  that  of 
the  other  directors,  $4,000  each.  The  mayor  and  directors 
must  devote  their  whole  time  to  their  official  duties  and  can 
hold  no  other  public  office  or  employment  except  that  ot 
notary  public  or  militia  officer.  The  compensation  of  all 
municipal  officers  must  be  by  salary,  and  all  fees  and  perquis- 
ites are  to  be  paid  into  the  city  treasury,  on  penalty  of  forfeit- 
ure of  office.  All  officers  must  be  bona  fide  residents  of  the 
city  and  citizens  of  the  United  States.  All  officers  and  em- 
ployes are  forbidden  to  atterid,  or  be  members  of  or  delegates 
to  any  political  convention  at  which  municipal  officers  arc 
nominated,  except  where  policemen  attend  on  duty.  In  case 
of  violation  of  this  provision  the  mayor  or  head  of  the  appro- 
priate department  must  remove  the  officer  or  discharge  the 
employe.  All  officers,  clerks  and  employes,  except  as  other- 
wise provided,  are  appointed  by  the  heads  of  departments 
without  the  advice  and  consent  of  the  council.  A  head  of  de- 
partment may  dismiss  with  written  statement  of  reasons  any 
officer  or  employe  under  him, except  for  political  reasons;  and 
provided  further,  that  policemen  and  firemen  must  be  given  a 
hearing,  if  demanded,  before  the  mayor,  director  of  law  and 
president  of  the  council.  Each  director  may  prescribe  rules 
and  regulations,  not  inconsistent  with  law,  for  his  department. 


467]  IN  MICHIGAN  AND  OHIO. 

He  is  required  to  furnish  the  mayor  or  council  with  any  infor- 
mation desired  in  relation  to  the  affairs  under  him.  The 
mayor  and  directors  are  required  to  co-operate  in  such  a  way 
as  to  secure  the  most  economical  purchase  of  supplies  for  all 
departments  at  uniform  rates.  They  are  given  seats  in  the 
council  without  a  vote,  and  they  may  be  compelled  to  attend 
meetings.  The  mayor  may  take  part  in  all  proceedings,  and 
each  director  in  those  affecting  his  department. 

Duties  of  the  mayor  and  directors.  The  law  goes  on  to  take 
up  the  duties  of  the  mayor  and  the  several  directors  in  more 
detail.  The  duty  of  sending  to  the  council  from  time  to  time 
a  statement  of  the  finances  and  other  appropriate  matters  is 
imposed  upon  the  chief  executive.  He  is  also  given  the  abso- 
lute power  to  remove  the  directors  and  his  other  appointees, 
but  the  order  of  removal  must  be  in  writing,  entered  in  the 
records  of  his  office,  and  a  copy  must  be  transmitted  to  the 
council  without  delay.  In  cases  of  emergency,  for  five  days, 
or  longer  if  authorized  by  the  council,  the  mayor  may  assume 
complete  control  of  the  police  and  fire  forces.  A  private  sec- 
retary is  allowed  him,  who  shall  also  be  secretary  of  the  board 
of  control.  The  mayor  is  further  required  to  call  the  directors 
together  at  least  twice  a  month  for  consultation  on  city  affairs, 
and  reports  may  be  asked  for.  The  department  of  public 
works  is  in  charge  of  a  director,  and  includes  the  care,  man- 
agement and  administration  of  water  works,  streets,  public 
grounds  and  parks,  including  opening,  improvement,  repair, 
cleaning  and  lighting;  public  buildings  and  bridges,  except 
those  falling  directly  under  the  charge  of  some  other  depart- 
ment; sewers,  drainage  and  dredging;  surveys,  maps,  plans, 
estimates,  etc.;  all  matters  relating  to  or  affecting  highways, 
footways,  waterways,  harbors,  wharves  and  docks;  and  the 
appointment  of  harbor  masters  and  other  officers  authorized 
by  the  council  for  regulation  of  the  navigation,  trade  and  com- 
merce of  the  corporation,  in  pursuance  of  law.  The  whole 
department  is  organized  in  three  divisions,  under  the  "  super- 


MUNICIPAL  GOVERNMENT 


[468 


intendent  of  water  works,"  the  "  superintendent  of  streets  "  and 
the  "  chief  engineer,"  respectively.  Under  the  director  of 
police  are  placed  the  police  force,  police  telegraphs,  etc.,  the 
sealing  of  weights  and  measures,  the  city  scales  and  markets, 
the  inspection  of  food,  and  the  public  health  functions  in  gen- 
•eral.  The  members  of  the  police  force  are  to  be  appointed  in 
accordance  with  civil  service  rules;  and  the  police  pension 
fund  is  placed  under  the  charge  of  a  board  consisting  of  the 
mayor  as  president,  the  directors  of  police  and  of  law,  and 
three  members  of  the  force  elected  by  their  fellows.  Under 
the  director  of  the  fire  department  are  placed  the  fire  force,  its 
buildings,  apparatus,  etc.;  the  inspection  of  buildings,  boilers, 
elevators  and  fire  escapes;  the  examination,  regulation  and 
licensing  of  stationary  engineers  ;  and  the  consumption  of 
smoke.  The  fire  force  also  is  appointed  under  civil  service 
rules.  At  the  head  of  the  department  of  accounts  is  placed  a 
director  to  be  known  as  the  city  auditor.  He  is  required  to 
keep  accurate  accounts  of  taxes,  receipts,  debts,  appropriations, 
etc.,  and  audit  the  accounts  of  each  department  annually  or 
oftener.  He  prescribes  the  forms  of  book-keeping  and  reports 
made  to  him.  Other  detailed  regulations  to  prevent  illegal 
warrants  and  loose  expenditure  are  in  force.  The  director  of 
law  is  known  as  the  corporation  counsel,  and  is  the  legal  ad- 
viser of  the  city.  His  duty  is  to  draw  up  all  contracts  and 
bonds,  and  indorse  them,  besides  performing  the  regular  duties 
of  solicitor.  Under  the  director  of  charities  and  corrections 
are  ranged  the  work-house,  the  house  of  refuge  and  correction, 
the  cemeteries,  the  infirmaries,  and  all  other  charitable  and 
penal  institutions  established  by  the  city. 

The  board  of  control  and  financial  commissions.  An  import- 
ant feature  of  the  charter,  perhaps  simply  a  survival  of  past 
ideas,  is  the  board  of  control,  consisting  of  the  mayor  as  presi- 
dent and  the  six  directors.  This  board  must  hold  at  least  two 
meetings  a  week,  and  perform  the  duties  of  the  old  board  of 
improvements,  commissioners  of  sewers,  and  board  of  revis- 


469]  IN  MICHIGAN  AND  OHIO.  j  5  l 

ion.  The  old  sinking  fund  commission,  tax  commission,  de- 
positary commission  and  annual  and  decennial  boards  of 
equalization  are  continued  under  the  new  system.  But  these 
have  to  do  chiefly  with  the  technical  application  of  the  system 
of  taxation,  and  the  performance  of  certain  special  financial 
duties,  and  do  not  form  an  essential  part  of  the  city  adminis- 
tration. 

Contracts.  The  only  important  feature  of  the  charter  still  to 
be  spoken  of  is  the  part  dealing  with  contracts.  Paved  streets 
must  be  cleaned  by  contract.  Contracts  will  not  bind  the  city 
unless  money  has  first  been  appropriated,  or,  if  payment  is  to 
be  made  as  the  work  progresses,  unless  a  tax  has  been  levied 
to  meet  the  estimated  expenditure.  Contracts  for  more  than 
$250  must  be  in  writing,  executed  by  the  proper  director,  and 
approved  by  the  council  and  the  board  of  control.  The  usual 
requirements  are  made  for  receiving  proposals  where  contracts 
are  to  be  entered  into  for  more  than  $500,  and  prohibiting  a 
•contract  in  which  any  city  officer  or  employe  is  interested 
directly  or  indirectly. 

Amendments  to  the  charter.  An  amendment  passed  about  a 
month  after  the  original  act,  adopted  another  idea  from  the 
national  government.1  In  case  of  the  disability  of  the  mayor, 
or  a  vacancy  in  his  office,  the  heads  of  departments  are  to 
succeed  him,  with  precedence  as  follows  :  Law,  public  works, 
police,  fire,  accounts,  charities  and  corrections.  Another  act 
passed  by  the  same  assembly  placed  the  valuation  of  property 
in  the  hands  of  not  more  than  forty  assessors,  not  more  than 
half  of  them  to  be  of  the  same  political  party,  to  be  appointed 
by  the  county  auditor  and  approved  by  the  tax  commission.3 

1  O.  L.,  88  v.  304. 

2  Ibid.,  88  v.  341.     In  Ohio  a  general  re-assessment  of  real  estate  is  made  once 
in  ten  years  by  district  assessors  elected  by  the  people-     Township  assessors  are 
elected  every  year  to  list  chattel  property.     The  forty  assessors  referred  to  in  the 
text    perform  the  duties  of  township  assessors  for  the  forty  wards  of  Cleveland. 
They  do  not  act  together  in  any  way.     Annual  and  decennial  city  and   county 
boards  of  equalization  are  provided  for  by  law. 


1 5 2  MUNICIPAL  GOVERNMENT  [47<> 

The  appointment  of  the  members  of  the  annual  board  of  equal- 
ization was  then  transferred  from  the  council  to  the  mayor.1 
A  trace  of  the  old  system  is  found  in  the  provision  for  the  ap- 
pointment of  an  inspector  of  boilers  by  the  director  of  the  fire 
department,  subject  to  the  approval  of  the  council? 

It  is  needless  to  follow  the  details  of  legislation  further.  In 
the  few  years  since  its  enactment,  the  Cleveland  charter  of 
1891  has  maintained  itself  remarkably  well  against  the  on- 
slaughts of  piecemeal  legislation.  The  general  assembly  con- 
tinues to  pass  about  a  score  of  acts  at  every  session  referring 
to  certain  details  of  the  Cleveland  administration,  and  there  is 
small  reason  to  hope  that  the  charter  will  long  remain  ma- 
terially unaltered,  unless  some  radical  reform  is  inaugurated  in 
the  methods  of  legislation  for  Onio  cities.  In  1892  the  school 
administration  of  the  Cleveland  district  was  reorganized  on  the 
plan  of  the  city  charter,  the  executive  and  legislative  authori- 
ties being  separated  and  vested  in  a  school  director  and  a 
school  council  respectively.3  The  council  is  composed  of 
seven  members  elected  at  large  by  the  people  of  the  city.  It 
is  possible  that  a  thorough  trial  of  this  general  scheme  in  all 
city  affairs  may  so  strengthen  its  hold  on  the  popular  mind  as 
to  operate  successfully  as  a  check  on  legislative  interference. 

1 0.  L.,  88  v.,  370.  2  Ibid.,  88  v.  379.  *  Ibid.,  89  v.  74. 


CHAPTER  VIII. 

DETROIT     AND     CLEVELAND:     A     REVIEW     OF    THEIR    MUNICIPAL. 

EXPERIENCE. 

Organization  of  the  council.  Detroit  has  tried  a  good  many 
things  in  the  way  of  government,  as  we  have  seen.  Twice  the 
common  council  has  consisted  of  two  chambers,  once  under 
Governor  Hull's  charter  of  1806,  and  once  during  the  period 
from  1 88 1  to  1887.  The  upper  chamber  was  established  in 
1 88 1  for  the  purpose  of  checking  the  board  of  aldermen  in 
their  reckless  and  corrupt  expenditures.  But  the  two  cham- 
bers did  not  check  each  other,  and  in  the  Legislature  of  1887 
it  was  charged  that  the  upper  house  had  taken  the  lead  in  ex- 
travagance and  corruption.  The  experiment  under  Hull  was 
not  given  sufficient  trial  to  add  much  to  the  sum  of  political 
experience,  but  that  of  1881,  where  the  members  of  the  second 
chamber  were  elected  by  general  ticket  for  comparatively  long 
terms,  with  partial  renewal  every  year,  goes  a  long  way  to 
disprove  the  supposition  that  election  by  general  ticket  will 
insure  responsibility  and  efficiency.  Cleveland's  experience 
has  been  somewhat  different  from  that  of  Detroit.  The 
council  from  1836  to  1852  was  composed  of  a  single  chamber, 
but  had  two  kinds  of  members,  the  councillors  chosen  by 
wards  and  the  aldermen  chosen  by  the  whole  city.  In  1885 
Cleveland  tried  the  bicameral  council,  by  the  establishment  of 
an  upper  chamber  to  consist  of  nine  members  elected  by  dis- 
tricts for  two-year  terms.  This  experiment  lasted  four  years, 
until  1889.  In  Detroit  the  lower  chamber  was  known  as  the 
board  of  aldermen,  while  in  Cleveland  the  upper  chamber  was 
given  that  title.  In  Detroit  the  upper  chamber  was  given  all 
the  powers  of  the  council  in  confirming  appointments,  and  was 
470  *53 


MUNICIPAL  GOVERNMENT 


[472 


also  given  the  financial  power  formerly  belonging  to  the 
citizens'  meeting  and  later  to  the  board  of  estimates.  In 
Cleveland  the  election  and  confirmation  of  officers  by  the 
council  were  to  be  done  in  joint  session.  Here  also  both 
chambers  were  elected  by  popular  vote,  by  districts,  and  for 
the  same  term.  During  most  of  their  history,  however,  these 
two  cities  have  had  the  one-chamber  system,  with  but  one 
class  of  members,  usually  elected,  two  from  each  ward,  for 
two-year  terms.  But  in  Cleveland's  latest  charter,  we  find  a 
smaller  council  of  twenty  members,  elected  in  ten  districts, 
each  of  which  usually  comprises  four  wards.1 

Powers  of  the  council.  The  functions  of  the  council  are 
fully  as  important  as  its  form  of  organization.  In  the  charter 
of  1806,  the  Detroit  council  was  given  almost  unlimited 
powers,  subject,  however,  to  the  absolute  veto  of  the  mayor. 
In  1815,  the  trustees'  sphere  of  action  was  almost  as  large,  but 
all  ordinances  had  to  be  submitted  to  popular  vote.  In  1824, 
this  restriction  was  omitted  in  the  new  charter.  Until  1857, 
all  appointive  officers  were  chosen  by  the  council.  By  the 
charter  of  that  year  an  important  power  of  removal  was  given 
to  the  council  over  all  elected  and  appointed  officers,  save  the 
mayor  and  recorder.  Since  that  time  the  tendency  has  been 
to  decrease  the  appointive  powers  of  the  council,  regulate  and 
define  more  minutely  its  general  powers,  and  assign  large 
parts  of  its  administrative  functions  to  separate  commis- 
sions. But  the  Supreme  Court  has  indicated  in  the  case  of 
Attorney  General  vs.  The  Common  Council  of  Detroit,2  that 
the  legislature  would  not  be  permitted  to  deprive  the  council 
of  its  essential  legislative  functions.  Probably  this  attitude  of 
the  court  has  helped  to  keep  the  common  council  a  very  im- 
portant body  in  the  Detroit  government.  The  first  city  char- 
ter of  Cleveland  gave  the  council  very  extensive  functions, 
backed  by  full  financial  powers.  The  council  named  all  ap 

1  The  council  is  now  composed  of  twenty-two  members. 

2  29  Mich.,  108,  supra. 


.473]  IN  MICHIGAN  AND  OHIO  !  5  5 

pointive  officers.  Although  its  taxing  and  borrowing  powers 
were  strictly  limited  under  the  general  act  of  1852,  a  pretty 
full  power  of  organizing  the  city  administration  and  appointing 
the  officers  not  named  in  the  general  law,  was  given  to  it. 
The  tendency  of  the  next  ten  years  was  to  increase  the  coun- 
cil's power  in  the  appointment  of  the  various  boards  and 
officers  provided  for  by  law.  But  for  the  last  thirty  years,  the 
tendency  has  been  carefully  to  restrict  the  financial  powers 
and  gradually  to  take  away  the  appointive  powers  of  the  council. 
Under  the  last  charter  it  is  confined  almost  entirely  to  legisla- 
tive functions,  though  its  consent  is  still  required  for  the  ap- 
pointment of  the  heads  of  departments.  In  the  history  of 
these  two  cities  the  pay  of  aldermen  and  councilmen  has 
ranged  from  nothing,  or  a  small  per  diem  allowance,  to  a  max- 
imum of  $600  a  year  in  Detroit  at  the  present  time.  In  both 
cities  the  council  has  the  power  of  passing  on  all  important 
contracts. 

The  executive.  The  organization  and  powers  of  the  execu- 
tive have  gone  through  various  forms.  The  most  remarkable 
is  the  oldest,  namely,  the  mayor  appointed  by  the  governor 
and  given  an  absolute  veto  over  the  acts  of  the  council,  in 
Detroit's  first  city  charter.  After  that  short-lived  experiment, 
and  a  period  from  1815  to  1824  with  no  mayor  at  all,  the 
mayor  was  elected  by  the  people,  and  continued  to  be  a  voting 
member  and  president  of  the  council  until  1857  in  the  case  of 
Detroit.  In  Cleveland  the  mayor  was  simply  the  presiding 
officer  of  the  council  with  no  vote  except  in  case  of  tie, 
until  1852,  when  that  body  began  to  choose  its  own  president 
In  the  early  days  of  both  cities  the  mayor  was  chiefly  a 
judicial  and  peace  officer,  though  Cleveland's  first  charter  gave 
him  a  position  as  superintendent  of  the  administration  under  the 
direction  of  the  council.  With  the  separation  of  the  mayor 
from  the  council  came  an  increase  in  his  appointive  powers 
and  a  decrease  in  his  judicial  powers.  The  mayor  of  Detroit 
also  received  important  powers  of  removal  by  the  charter 


156  MUNICIPAL  GOVERNMENT  [474 

of  1857.  He  was  given  a  veto  over  most  of  the  acts  of  the 
council,  subject  to  a  two-thirds  vote,  which  he  still  retains. 
The  same  is  true  of  the  mayor  of  Cleveland  under  the  present 
charter.  The  importance  of  the  mayor  has  been  increased  in 
both  cities  from  time  to  time  by  his  being  made  ex-officio  mem- 
ber or  president  of  certain  boards,  or  by  his  being  given  a  veto 
over  their  proceedings.  But  Detroit  has  no  unified  adminis- 
tration, and  the  power  of  the  present  mayor,  Mr.  Pingree,  is 
due  more  to  his  personal  qualities  than  to  his  offiicial  position. 
Only  the  city  counselor  and  the  members  of  the  police  board 
are  appointed  by  the  mayor  absolutely.  Most  of  the  other 
heads  of  departments,  if  they  may  be  so  called,  are  elected  by 
the  people,  while  the  several  boards  are  appointed,  one  or  two 
members  at  a  time,  by  the  mayor  and  council.  In  Cleveland, 
on  the  other  hand,  the  mayor  has  become  the  real  head  of  the 
city  administration,  with  a  cabinet  of  directors  patterned  after 
the  President's  cabinet  in  the  national  government.  One  very 
important  feature  in  which  Cleveland  departs  from  the  "  Fed- 
eral "  example,  however,  is  in  giving  the  mayor  and  directors 
seats  in  the  city  council  for  deliberation.  His  extensive  veto 
power  and  absolute  power  of  removal  make  Cleveland's  mayor 
one  of  the  most  powerful  and  responsible  officers  in  all  our 
municipal  service.  It  should  be  added  that  the  board  of  pub- 
lic works  in  Detroit  and  the  directors  of  departments  in 
Cleveland  are  required  to  give  all  their  time  to  their  public 
duties,  and  hence  tend  to  become  semi-professional  officers. 

Administrative  boards.  The  two  cities  that  we  are  consider- 
ing have  by  no  means  been  free  from  the  "  board  system."  It 
is  to  be  expected  that  public  education  shall  be  separated  from 
the  ordinary  municipal  authorities  and  put  under  separate 
management.  In  1836  the  council  of  Cleveland  was  author- 
ized to  appoint  a  school  board,  and  in  1842  an  elective  board 
was  established  in  Detroit.  The  Cleveland  school  board  long 
ago  became  elective,  and  in  1892  was  succeeded  by  a  director 
and  a  school  council  elected  by  the  city  at  large,  on  the  plan 


.475] 


IN  MICHIGAN  AND  OHIO. 


of  the  city  government.  In  the  case  of  Detroit  the  mayor  was 
president  of  the  board  of  education  at  first,  but  was  removed 
in  1846.  In  1893  the  financial  resolutions  of  the  board  were 
subjected  to  the  mayor's  veto.  The  separation  of  school  af- 
fairs from  the  ordinary  city  administration  was  followed  by 
special  provisions  for  various  other  more  or  less  independent 
boards,  as  we  have  already  seen.  There  is  no  very  marked 
difference  in  the  experience  of  the  two  cities  on  this  point,  ex- 
cept that  Cleveland  has  at  last  thrown  off  the  system  for  the 
most  part,  while  Detroit  is  as  much  entangled  in  a  confusion 
of  authorities  as  ever.  Detroit,  however,  has  had  the  advan- 
tage of  a  much  fuller  protection  by  the  courts  than  has  been 
given  in  Ohio.  Perhaps  the  reaction  in  Cleveland  has  come 
sooner  from  this  fact  also,  that  its  boards  have  frequently  been 
elective,  while  the  Detroit  boards  have  more  generally  been 
appointive.  Detroit  still  has,  all  told,  a  "  baker's  dozen  "  of 
boards  and  commissions.  The  bi-partisan  principle  tried  ex- 
tensively for  the  cities  of  Ohio  and  Michigan  has  been  found 
unconstitutional  in  the  latter  state.1 

The  direct  vote  of  the  people.  The  direct  vote  of  the  citizens 
has  been  a  very  important  force  in  determinining  municipal 
policy  in  Detroit.  From  1815  to  1824  all  ordinances  had  to 
be  submitted  to  the  people  for  approval  or  rejection,  while 
taxes  continued  to  be  voted  by  the  citizens'  meeting  until  1873. 
Since  then  at  various  times  the  question  of  issuing  bonds  has 
been  submitted  to  the  electors,  as  well  as  certain  questions  be- 
longing to  the  school  administration.  Much  less  dependence 
has  been  placed  on  the  popular  vote  in  Cleveland.  Occasion- 
ally the  question  of  a  new  loan  is  submitted  to  the  electors, 
but  the  citizens'  meeting  and  the  popular  approval  of  ordinances 
have  been  unknown  there.  The  working  of  local  self-  govern- 
ment in  the  two  cities  is  interesting.  In  Detroit,  where  the 
people  have  had  more  power,  there  has  been  a  greater  struggle 
-against  legislative  interference  by  the  establishment  of  centrally 
1  Attorney  General  v.  The  Board  of  Councilmen,  58  Mich.,  213,  supra. 


!  ^ 8  MUNICIPAL  GOVERNMENT  [4/6 

appointed  boards.  There  seems  to  have  been  less  central  in- 
terference in  the  case  of  Cleveland,  and  less  struggle  against  it. 
This  difference  can  probably  be  explained  by  the  fact  that  the 
same  political  party  usually  controls  in  Cleveland  and  in  the 
state  of  Ohio  as  a  whole,  while  different  parties  have  ruled  in 
Detroit  and  the  state  of  Michigan. 

Finances.  The  crucial  point  in  American  city  government 
seems  to  be  the  finances.  In  the  charter  of  1824  the  maximum 
tax  rate  in  Detroit  was  put  at  two  and  a  half  mills  on  the  dol- 
lar of  the  valuation  of  real  and  personal  property.  This  limit 
was  doubled  in  1841.  Ten  changes  in  the  method  of  assess- 
ment were  made  during  eighty  years.  The  power  to  levy 
special  assessments  was  first  granted  in  1855  for  sewer  pur- 
poses. Thirteen  separate  funds  were  established  in  1857.. 
Their  number  at  the  present  time  is  legion.  The  tax  rate  had 
risen  to  15.77  mills  in  1894,  on  a  total  valuation  of  $209,- 
151,220;  while  the  net  indebtedness  of  the  city  was  $3,359,- 
294.  The  limit  of  indebtedness  is  fixed  by  law  at  two  per 
cent,  of  taxable  valuation,  while  the  public  property  now 
owned  by  the  city  is  valued  at  more  than  $12,000,000.  Cleve- 
land's financial  history  has  been  considerably  different.  As  a. 
village  its  tax  limit  was  placed  at  one  per  cent.,  with  no 
borrowing  power.  But  in  1836  an  unlimited  taxing  and 
borrowing  power  was  granted,  including  the  right  to  levy 
special  assessments.  In  1841,  however,  the  general  tax  rate 
was  limited  to  five  mills.  With  the  introduction  of  general 
legislation  under  the  new  constitution,  the  taxing  power  was 
strictly  limited  in  aggregate  and  in  detail,  and  the  borrowing 
power  was  taken  away.  Since  then  the  General  Assembly  has 
been  called  upon  constantly  to  authorize  special  loans  and  tax 
levies.  The  tax  valuation  of  all  property  in  the  city  for  1893 
was  $126,515,990,  and  the  tax  rate  was  13.45  mills.  The 
ordinary  expenditures  for  1894  were  almost  five  million  dol- 
lars. The  total  debt  of  the  city  was,  on  January  I,  1895,  $IO,- 
266,  205.32,  as  against  city  property  and  permanent  improve- 


477]  IN  MICHIGAN  AND  OHIO. 

ments  valued  at  $33,850,264.35.  Thus  we  see  that  the  finan- 
cial affairs  of  Cleveland  have  been  carried  on  in  a  much  larger 
way  than  those  of  Detroit.  Detroit  owns  its  own  water  works 
and  public  lighting  plant.  Cleveland  owns  its  water  works 
and  several  cemeteries.  Both  cities  have  extensive  parks.1 

Detroit  and  Cleveland  have  had  in  reality  about  an  equal 
amount  of  special  legislation,  though  that  of  Cleveland  has 
been  clothed  in  general  form.  In  Detroit,  we  find  under 
Mayor  Pingree's  administration  a  strong  development  of  civic 
spirit,  and  a  tendency  to  extend  the  functions  of  city  govern- 
ment. In  Cleveland,  under  its  new  charter,  we  find  the  em- 
phasis laid  on  the  perfection  of  administrative  machinery,, 
rather  than  on  the  extension  of  administrative  functions. 

1  See  "Annual  Reports,"  City  of  Detroit,  1893;  City  of  Cleveland,  1894. 


CHAPTER  IX. 

THE    ELEMENTS    OF   A    CITY    CHARTER. 

IT  is  certainly  a  common  remark  among  municipal  reform- 
ers of  the  present  time  that  the  form  of  charter  makes  little 
difference,  if  only  competent  and  honest  officers  have  the  con- 
trol of  the  administration.  It  is  true,  to  be  sure,  that  govern- 
ment cannot  rise  permanently  above  its  source.  But  while  it 
may  be  readily  admitted  that  good  laws  cannot  forestall  bad 
government,  it  is  no  less  certain  that  bad  laws  can  seriously 
interfere  with  the  work  of  good  officers.  And  thanks  to  this 
inequality  of  conditions,  it  is  seen  to  be  necessary  that  we  have 
both  good  laws-  and  good  officers  to  administer  them.  There  is 
no  loop-hole  through  which  the  people  can  slink  away  and 
•escape  responsibility  for  the  character  of  government. 

The  first  thing  to  be  considered  in  discussing  forms  of  muni- 
cipal organization  is  the  fundamental  idea  of  what  the  city  cor- 
poration exists  for.  Is  the  city  a  business  corporation  or  a 
political  unit  ?  It  is  hard  to  define  the  extreme  views  on  this 
question,  although  there  has  been  a  good  deal  of  loose  talk 
about  it.  It  is  known  that  in  ancient  times  Athens  and  other 
cities  were  city-states.  This  is  also  true  of  Venice,  Florence 
and  other  cities  of  the  Middle  Ages.  But  in  modern  times, 
outside  of  a  few  German  free  cities,  the  city  has  been  the 
creature  of  a  larger  state.  Still,  in  being  subordinate  to  the 
state,  not  all  cities  have  lost  their  real  political  character.  The 
tremendous  influence  of  Paris  as  a  unit  on  the  politics  of 
France  in  modern  times  is  well  known.  It  may  be  said  with 
equal  truth  that  New  York  city  has  been  a  political  unit  in 
the  history  of  American  public  affairs,  and  it  has  been  sug- 
160  [478 


479]  IN  MICHIGAN  AND  OHIO.  i$l 

gested  to  set  it  off  by  itself  as  one  of  the  commonwealths  of 
the  Union.  All  American  cities  have  been  recognized  in  law 
and  in  fact  as  governmental  divisions,  political  in  their  nature. 
On  the  other  hand,  British  and  German  cities  seem  to  have 
emphasized  the  business  side  of  their  corporate  life.  The  cus. 
torn  of  advertising  for  a  chief  of  police1  or  a  burgomaster*  cer- 
tainly points  to  a  somewhat  different  conception  of  city  gov- 
ernmental functions  than  we  are  acquainted  with  in  America. 
To  the  municipal  reformer  who  has  seen  with  disgust  the 
•degradation  of  our  city  politics,  and  who  has  been  taught  to 
look  to  the  cities  of  the  Old  World  for  beautiful  examples  of 
non-partisan  municipal  governments,  it  is  not  strange  that  the 
idea  of  a  city  governed  simply  on  business  principles,  without 
any  reference  to  politics,  should  appeal  strongly.  The  result 
has  been  a  good  deal  of  unsound  thinking  with  reference  to 
municipal  reforms.  City  government,  like  all  government,  is 
both  political  and  industrial,  and  it  is  hard  to  keep  a  true 
equilibrium  between  these  two  characteristics.  It  is  no  easy 
matter  to  tell  just  where  business  leaves  off  and  politics  begins 
in  governmental  affairs.  A  great  proportion  of  all  the  affairs 
of  government,  whether  national,  commonwealth  or  municipal, 
should  be  conducted  on  business  principles,  always  keeping  in 
view  the  general  welfare.  In  the  city,  with  its  paving,  street 
cleaning,  sewerage,  lighting,  water  supply,  sanitation,  parks, 
street  railways,  public  buildings,  docks,  housing  regulations, 
charities,  excise  administration,  libraries  and  public  schools, 
police,  and  fire  service,  we  see  an  accumulation  of  the  so-called 
business  functions  of  government.  It  is  not  clear  but  that  the 
name  business  is  applied  quite  indiscriminately  to  the  com- 
paratively recent  fields  of  governmental  activity.  It  is  possible 
that  with  the  complete  break-down  of  the  military  civilizations 
of  the  old  world  and  the  establishment  of  permanent  tribunals 
for  international  arbitration,  all  government  may  some  day 

1  Albert  Shaw,  "  Municipal  Gov't  in  Great  Britain,"  p.  66. 
*  Ibid.,  "  Municipal  Gov't  in  Continental  Europe,"  p.  318. 


MUNICIPAL  GOVERNMENT  [480 

turn  into  business.  The  point  I  wish  to  make  is  that  city 
government  is  government,  and  to  call  it  business  and  not 
politics,  is  simply  to  say  that  all  government  is  tending  to  em- 
phasize the  industrial  at  the  expense  of  the  military  functions. 
The  essential  thing  is  that,  however  you  classify  and  name  the 
activities  of  government,  under  a  democratic  system  the  indi- 
vidual citizen  as  a  citizen  has  his  share  of  responsibility  for  the 
success  or  failure  of  public  affairs. 

Next  to  this  fundamental  question,  in  discussing  the  forms 
of  city  organization  we  must  take  account  of  the  size  of  the 
city,  and  the  character  and  distribution  of  its  population.  An 
immense  city  like  London  or  New  York  is  too  large  an  ad- 
ministrative unit  to  insure  the  greatest  efficiency,  and  too  large 
an  elective  unit  to  insure  the  most  intelligent  and  careful 
choice  of  officers.  The  character  of  a  city's  population  is  im- 
portant in  determining  the  basis  of  suffrage  and  the  qualifica- 
tions for  office.  The  presence  of  large  aggregations  of  foreign- 
born  persons  not  yet  familiar  with  our  institutions,  the  influx 
of  tramps  and  semi-criminals,  and  the  absence  in  suburban 
residences  of  a  large  proportion  of  the  most  thrifty  members 
of  the  community,  make  the  problem  of  municipal  suffrage  a 
serious  one  indeed.  The  problem  of  ward  divisions  is  compli- 
cated by  the  mobility  of  the  population,  the  general  lack  of 
neighborhood  spirit,  and  the  geographical  differentiation  of  the 
population  according  to  race,  religion  or  wealth. 

There  are  in  the  large  cities  of  the  modern  world  at  least 
four  more  or  less  distinct  types  of  governmental  organization. 
In  one  the  municipal  council  is  the  all-important  central  body, 
and  not  only  makes  the  ordinances,  but  carries  on  the  ad- 
ministration through  its  committees  and  appointees.  The 
cities  of  Great  Britain  are  organized  on  this  plan.  This  was 
formerly  the  American  plan  also,  but  at  the  present  time  the 
council  system  has  almost  lost  its  hold  on  our  municipal  or- 
ganizations. We  have  already  seen  that  Detroit  and  Cleve- 
land had  this  system  in  their  early  history.  Minneapolis  still 


48 1  ]  IN  MICHIGAN  AND  OHIO.  jgj 

has  council  government,  with  some  modifications.1  A  second 
type  of  municipal  organization  is  that  prevalent  in  the  French 
and  German  cities,  where  the  council  chooses  the  executive, 
but  has  no  power  of  removal.  The  mayor  and  his  adjuncts  in 
France  and  the  burgomaster  and  his  staff  in  Germany  are  the 
real  heads  of  the  administration,  and  once  in  their  positions 
are  quite  independent  of  the  council.  In  this  type  of  muni- 
cipal organization  the  executive  officers  tend  to  be  professional, 
though  this  is  probably  truer  in  Germany  than  in  France,  ow- 
ing to  the  longer  official  terms  in  the  former  country.  A  third 
type  of  municipal  organization  is  that  represented  by  Cleve- 
land and  a  few  other  American  cities  at  the  present  time.  It 
is  the  outcome  of  extending  the  separation  of  powers,  as 
worked  out  in  the  United  States  national  system,  into  local 
government.  The  council,  in  this  system,  is  confined  to  legis- 
lative functions,  while  the  mayor,  elected  by  the  people,  is 
given  very  full  powers  as  chief  executive  and  head  of  the  ad- 
ministration. The  judicial  power  is  vested  in  a  separate 
system  of  city  courts,  so  that  the  division  of  the  government 
into  the  three  sets  of  organs  is  tolerably  complete.  The  fourth 
type  of  city  organization  is  the  prevalent  one  in  the  United 
States,  and  has  been  called  the  board  system.  There  are  so 
much  confusion  and  so  little  uniformity  in  the  board  system 
that  it  hardly  deserves  to  be  called  a  type,  but  it  has  certain 
general  characteristics  that  appear  in  most  cases.  Cleveland 
from  1852  to  1891,  and  Detroit  since  about  1853,  are  fairly 
good  examples  of  this  system  in  its  more  moderate  form.  The 
government  of  New  York  city  varies  from  this  type  in  the  great 
powers  that  are  given  to  the  mayor  in  appointing  the  various 
boards,  but  as  the  boards  exist  and  have  their  duties  minutely 
regulated  by  law,  while  the  council  has  been  reduced  almost  to 
a  nonentity,  we  cannot  deny  the  American  metropolis  a  place 

1  For  a  very  interesting  and  able  account  of  the  Minneapolis  system,  see  Pro- 
ceedings of  Minneapolis  and  Cleveland  Conferences  for  Good  City  Government, 
pp.  93-104. 


MUNICIPAL  GOVERNMENT 


[482 


in  the  general  category  of  board-governed  cities.  In  fact  this 
variation  of  the  board  system  in  favor  of  the  mayor's  power 
has  become  almost  universal  in  our  large  cities.  Perhaps 
Denver  is  as  good  an  example  as  still  survives  of  the  board 
system,  where  the  mayor  and  the  council  both  have  compara- 
tively small  powers.  In  the  true  board  system,  the  members 
of  the  several  boards  are  elected  one  or  two  at  a  time  by  the 
people,  or  appointed  by  the  governor  of  the  state,  or  appointed 
by  the  mayor  and  council  who  have  very  meagre  powers  of 
removal.  The  board  system  is  the  outcome  of  a  very  compli- 
cated set  of  ideas.  The  doctrine  of  piecemeal  legislation,  the 
distrust  of  the  local  council,  the  belief  in  popular  election,  the 
theory  of  partial  renewal,  the  desire  for  non-partisanship,  the 
idea  that  deliberation  is  required  in  administrative  bodies,  and 
the  greed  for  political  spoils,  all  have  had  more  or  less  to  do 
with  the  distribution  of  city  administrative  functions  among 
boards.  There  is  practically  nothing  to  be  said  in  favor  of  the 
board  system  as  it  has  been  developed.  All  agree  that  sub- 
stantial unity  or  at  least  harmony  must  be  attained  in  muni- 
cipal administration  by  some  means  or  other. 

The  council  system  has  a  good  many  things  in  its  favor, 
first  among  them  being  the  fact  that  some  of  the  best  governed 
cities  in  the  world  have  that  type  of  organization.  But  this 
statement  should  not  be  made  too  sweeping,  for  we  find  that 
the  cities  of  continential  Europe  have  a  type  of  government 
differing  quite  radically  from  that  of  the  British  cities,  where 
the  council  system  exists  in  its  purest  form.  But  even  if  we 
class  the  governments  of  Berlin  and  Buda-Pesth  with  those  of 
Glasgow  and  Birmingham,  as  opposed  to  the  kinds  of  city 
government  prevalent  in  America,  because  of  the  lesser  im- 
portance of  the  council  in  the  latter,  we  can  find  no  conclusive 
proof  that  a  system  which  works  well  in  Old  World  cities  will 
necessarily  give  New  York  or  Detroit  a  good  government. 
Although  the  rapid  growth  of  cities  is  in  all  the  western  world 
a  phenomenon  of  the  present  century,  and  especially  of  the  pres- 


483]  IN  MICHIGAN  AND  OHIO. 

ent  half  century,  it  is  still  tiue  that  American  conditions  are 
different  from  European  conditions.  The  most  important 
difference,  probably,  lies  in  the  greater  race  mixtures  in  Amer- 
ican cities.  Foreign  immigration  has  made  every  one  of  our 
large  towns  a  world-city,  with  no  sense  of  unity  in  its  popula- 
tion. There  has  probably  been  also  a  great  difference  in  in- 
dustrial conditions  in  the  cities  of  the  New  World  and  of 
the  Old.  Although  the  industrial  expansion  in  European 
cities  during  the  last  few  decades  has  been  marvelous,1  it  is 
hardly  possible  that  the  opening  up  of  the  vast  resources  of  a 
new  country  like  the  United  States  should  not  be  attended 
with  more  feverishness,  unsteadiness  and  lack  of  co-operation 
in  the  centres  of  trade  and  production,  than  would  be  exper- 
ienced in  the  older  and  more  fully  developed  countries  of 
Europe.  Under  our  conditions  the  sense  of  social  unity  and 
social  responsibility  tends  naturally  to  be  less  strong.  The 
individual  prefers  to  take  his  chances  scrambling  for  himself. 
The  result  is  a  dearth  of  civic  feeling,  an  individualism  that  is 
death  to  responsible  self-government  in  densely  populated  dis- 
tricts. Now  the  leading  characteristic  of  the  successful  coun- 
cil government  is  precisely  the  unity  of  interest,  the  greater 
household  feeling,  that  American  cities  do  not  have  at  the 
present  time.  In  the  early  part  of  the  century  in  the  isolated 
settlements  of  the  West,  with  the  town-meeting  spirit  still  vig- 
orous, with  a  comparatively  homogeneous  population,  with  no 
system  of  quick  communication  like  that  we  now  have,  there 
survived  something  of  the  borough  spirit,  and  council  govern- 
ment was  possible,  as  we  have  seen  in  the  case  of  Detroit  and 
Cleveland.  But  when  towns  grew  into  cities,  although  there 
might  be  a  good  deal  of  local  pride  in  particular  places,  it 
came  to  be  of  that  unfruitful  and  ungenerous  kind  that  con- 
sists in  scorn  rather  than  emulation.  It  seems  to  me  that  this 
lack  of  real  civic  spirit  is  the  factor  which  must  be  taken  into 
consideration  before  we  argue  for  the  council  plan  from  the 

1  Shaw,  op.  cit.,  p.  290. 


MUNICIPAL  GOVERNMENT  [484 

experience  of  foreign  cities.  London  and  Paris  are  exceptions 
to  the  general  systems  of  city  government  in  England  and 
France.  They  are  too  cosmopolitan  to  have  the  civic  spirit 
required  for  entire  self-government.  Of  course,  other  peculiar 
factors  enter  into  their  problems,  but  on  this  one  point  we  find 
almost  all  American  cities  like  them.  Hence  it  seems  a  prac- 
tical necessity  to  modify  or  abandon  the  council  system  for 
the  present  in  our  general  city  polity. 

From  the  standpoint  of  the  city  as  an  industrial  unit,  a  busi- 
ness corporation,  if  we  reason  in  the  abstract,  there  is  much  to 
be  said  in  favor  of  council  government  as  found  in  Great 
Britain,  or  of  the  continental  system  where  the  administration 
is  put  in  the  hands  of  permanent  professional  officers.  We 
never  cease  to  hear  the  cry  that  city  administration  is  business, 
not  politics,  and  should  be  conducted  on  a  business  basis. 
A  little  closer  observation  will  show,  however,  that  the  man- 
agement of  cities  in  the  United  States  has  been  carried  on  in 
too  much  the  same  way  as  our  great  business  corporations. 
The  rings  of  city  bosses  and  the  rings  of  corporation  directors 
have  exploited  the  citizens  and  the  stockholders  in  the  interests 
of  self-aggrandizement.  The  trouble  has  arisen  in  both  cases 
from  the  preoccupation  in  personal  pursuits  of  the  individuals 
exploited;  it  is  the  same  old  story  of  the  lack  of  social  spirit. 
Each  man  prefers  to  take  his  chances  alone  until  the  struggle 
for  existence  becomes  too  sharp  to  permit  any  longer  the 
enormous  waste  arising  from  lack  of  cooperation.  It  might 
easily  be  contended  that  the  lack  of  sound  business  manage- 
ment is  as  conspicuous  a  failure  of  American  life  from  the 
standpoint  of  social  welfare  as  the  character  of  our  municipal 
governments  has  been.  The  business  principles  which  have 
brought  about  the  amassing  of  so  large  a  part  of  the  wealth  of  the 
United  States  in  great  fortunes,  certainly  do  not  give  any  very 
great  promise  of  bringing  in  the  millennium  if  applied  to  city 
governments.  The  fact  is,  our  cities  have  had  too  much  busi- 
ness on  the  corporation  plan  in  their  government.  The  argu- 


485]  IN  MICHIGAN  AND  OHIO, 

ment  in  favor  of  the  council  system  from  the  analogy  of  indus- 
trial corporations  is,  therefore,  not  conclusive.  The  interests 
of  a  business  corporation  are  radically  different  from  the  in- 
terests of  a  city. 

We  may,  perhaps,  conclude  that  the  council  form  of  govern- 
ment is  ideal  in  cities  where  there  is  a  strong  feeling  that  the 
city  is  nothing  but  a  larger  household,  and  where  municipal 
administration  is  regarded  as  business  and  not  politics.  In  the 
United  States,  however,  with  our  universal  suffrage  and  our 
democratic  ideals,  it  is  no  easy  matter  to  keep  city  affairs  out 
of  the  domain  of  politics.  Our  national  and  state  governments 
are  based  on  the  checks-and-balances  theory,  and  party  or- 
ganization has  become  very  deeply  rooted  in  all  grades  of 
government.  I  have  little  sympathy  for  that  view  of 
our  political  fixedness  which  declares  to  be  impracticable, 
any  governmental  improvement  no  matter  how  much  needed, 
if  only  it  runs  counter  to  our  century-old  political  tradi- 
tions. One  of  the  most  hopeful  things  about  the  inflow 
of  foreign  immigrants  is  that  their  presence  among  us  tends 
to  overcome  the  narrow  prejudices  of  American  politics, 
and  opens  the  way  for  the  modification  of  our  system  by  the 
introduction  of  new  methods  of  government  and  administration. 
Still  most  of  our  legislation  is  distinctly  American  in  spirit, 
and  we  must  look  for  progress  along  the  lines  already  laid 
down  in  this  country.  The  political  prejudices  of  our  people 
must  be  reckoned  with  in  any  reformatory  schemes  we  may 
advocate.  Democracy  is  on  trial  in  the  United  States,  and  the 
severest  test  of  its  worth  has  been  and  is  presented  by  the 
problems  of  city  government.  That  type  of  municipal  organi- 
zation arising  from  the  application  of  the  doctrine  of  checks 
and  balances  and  the  separation  of  powers  in  government  is 
firmly  grounded  in  American  public  law,  and  is,  I  am  inclined 
to  think,  a  necessary  and  perhaps  desirable  outgrowth  of  our 
political  ideas.  As  a  result  of  the  great  increase  in  the  import- 
ance of  the  administration  in  city  government  as  opposed  to 


1 68  MUNICIPAL  GOVERNMENT  [486 

the  other  departments,  we  find  a  mayor  under  the  system  of 
the  separation  of  powers  and  the  concentration  of  responsibil- 
ity a  much  more  important  officer  relatively  than  even  the 
President. 

There  is  a  striking  analogy  between  the  mayor-governed 
city  of  the  present  time  and  the  absolute  monarchies  of  two  or 
three  centuries  ago.  We  are  told  that  these  alsolute  monarch- 
ies were  founded  on  unorganized  democratic  states.1  In  the 
earlier  development  of  the  democratic  spirit,  before  the  people 
have  been  well-trained  in  self-government,  the  dictator  system 
seems  to  be  necessary.  This  is  approximately  the  case  now  in 
city  government.  No  great  city  population  is  as  yet  well 
trained  in  self-government  on  the  basis  of  manhood  suf- 
frage. The  peculiar  problems  of  government  in  dense  aggrega- 
tions of  people  bring  essentially  enlarged  spheres  of  activity 
within  the  domain  of  politics.  The  American  tendency  seems 
to  be  to  regard  these  new  problems  as  not  essentially  different 
in  their  nature  from  national  and  commonwealth  problems. 
Although  practically  all  municipal  reformers  are  crying  for  the 
separation  of  local  affairs  from  national  and  state  politics,  it  re- 
mains true  that  the  separation  is  not  made,  and  almost  at  once 
after  some  so-called  non-partisan  uprising  in  the  cities  the  peo- 
ple fall  back  within  the  old  party  lines.  Democracy  is  still 
political  rather  than  economic.  Hence,  if  we  are  to  have  man- 
hood suffrage,  we  must  .expect  political  government  in  the 
cities  as  well  as  elsewhere,  at  least  until  the  masses  have  gained 
more  freedom  and  training  in  industrial  autonomy.2  Political 
democracy,  partly  conscious  of  its  own  weakness,  likes  the 
one-man  power.  Responsibity  is  thus  assured,  and  the  people 

1  Burgess,  "  Political  Science  and  Comparative  Constitutional  Law,"  vol.  i,  pp. 
66,  127. 

2  Mr.  Kidd,  in  his  "  Social  Evolution,"  and  other  thinkers  of  the  present  day, 
have  pointed  out  that  while  the  political  enfranchisement  of  the  masses  is  almost 
complete  in  the  western  world,  equality  of  opportunity  in  the  social  and  indus- 
trial world  is  still  an  ideal  to  be  worked  out  in  future  generations. 


487]  IN  MICHIGAN  AND  OHIO. 

are  less  afraid  of  being  imposed  upon.  As  Americans  we  are 
getting  to  despise  everything  in  the  shape  of  legislative  bodies.1 
Yet  even  in  these  bodies  the  democratic  spirit  crops  out.  In 
England  the  standing  committees  of  the  municipal  councils 
and  the  one  or  two  standing  committies  of  the  House  of  Com- 
mons are  chosen  by  election,  while  in  the  United  States  only 
the  national  senate  follows  this  rule.  In  the  lower  house  of 
Congress,  in  both  branches  of  the  state  legislatures,  and  in  the 
city  councils,  standing  committees  are  usually  appointed  by 
the  presiding  officer.2  Thus  it  appears  that  the  granting  of 
large  powers  to  the  mayor  is  in  line  with  our  general  political 
tendencies,  and  this  policy  is  not  likely  to  be  soon  abandoned. 

If  we  accept  for  the  present  the  general  form  of  city  organ- 
ization by  which  the  departments  of  government  are  separated, 
and  the  mayor  is  made  the  responsible  political  chief  of  the 
whole  administration,  there  still  remain  many  details  to  be  con- 
sidered. Either  the  council,  the  state  legislature  or  a  series  of 
boards  must  exercise  the  municipal  legislative  powers,  no 
matter  how  complete  control  the  mayor  may  be  given  in  ad- 
ministration. The  levying  of  taxes,  the  authorizing  of  loans, 
the  granting  of  franchises,  the  passing  of  ordnances,  etc.,  are 
very  important  functions.  The  council  being  recognized  as 
the  sorest  spot  in  our  city  polity,  it  becomes  a  serious  problem 
how  to  organize  this  body  in  such  a  way  as  to  insure  the  largest 
responsibility.  We  have  seen  that  by  Cleveland's  new  charter 
the  council  is  composed  of  twenty  members  elected  in  ten  dis- 
tricts.4 The  man  who  was  the  principal  author  of  that  charter 
complains  that  the  number  of  councilmen  is  too  large ;  three 
or  five  would  do  better.4  This  certainly  is  an  extreme  prop- 

1  Commons,  "Proportional  Representation,"  chap.  I. 

J  The  municipal  government  of  Chicago  offers  a  marked  exception  to  this  rale- 
The  mayor  presides  over  the  council,  but  that  body  elects  its  own  committees. 

3  Supra.     There  are  now  twenty-two  members  elected  in  eleven  districts. 

*  Hon.  E.  J.  Blandin,  Municipal  Government  of  Cleveland,  in  the  Proceed- 
ings of  the  Minneapolis  Conference  for  Good  City  Government,  pp.  112-118. 


MUNICIPAL  GOVERNMENT 


[488 


osition.  It  does  not  seem  likely  that  the  legislative  functions 
of  a  great  city  can  reasonably  be  placed  in  the  hands  of  so 
small  a  body.  It  is  sometimes  urged  in  favor  of  a  large  coun- 
cil that  the  well-governed  cities  of  Europe  have  large  councils, 
and  also  that  it  is  more  difficult  for  private  corporations  inter- 
ested in  bad  government  to  corrupt  a  large  council.  A  ques- 
tion equally  as  important  as  the  number  of  council  members, 
is  the  manner  of  choosing  them.  Where  there  are  two  cham- 
bers of  the  council  the  tendency  is  to  elect  the  upper  house  by 
general  ticket  and  the  lower  house  by  districts.  The  objection 
to  the  district  plan  in  any  form  of  government  is  the  require- 
ment of  residence  in  the  district  for  the  councilman  chosen  by 
the  people  of  any  district.  The  conditions  in  cities  are  quite 
different  from  those  in  the  rural  parts  of  the  country,  because 
of  the  sharp  local  differentiations  of  city  populations  with 
reference  to  wealth,  nationality  and  social  standing.  The  dif- 
ference in  neighborhood  feeling  and  acquaintance  is  also 
marked.  In  New  York  city,  for  instance,  it  is  quite  possible 
for  two  families  of  the  same  general  standing  in  society  to  live 
on  the  same  street  with  only  a  brick  wall  between  them  for 
years,  and  not  know  each  other's  name.  In  such  a  city  a 
man's  neighbors  are  not  those  who  live  next  to  him,  but  the 
people  scattered  through  various  parts  of  the  city  who  meet 
him  at  church,  in  business,  or  at  the  club.  Still  it  seems  un- 
just and  impolitic  to  completely  centralize  the  legislature  of  a 
city  with  more  than  a  quarter  of  a  million  inhabitants.  The 
demands  for  election  by  general  ticket  and  the  demands  for 
election  by  district  are  conflicting,  and  can  be  met  only  by  a 
compromise,  and  perhaps  a  poor  one.  It  seems  much  better, 
nevertheless,  to  elect  a  part  of  the  council  by  general  ticket 
and  the  rest  by  districts,  all  members  to  sit  together  as  a  sin- 
gle chamber,  than  to  separate  them  into  two  chambers  accord- 
ing to  the  manner  of  their  election.  However,  if  an  effort  is  to 
be  made  to  secure  local  representation,  ward  divisions  should 
be  permanent,  and  established  as  far  as  possible  on  the  lines 


489] 


Iff  MICHIGAN  AND  OHIO. 


of  local  unity.1  Then  the  number  of  representatives  from  each 
ward  or  district  should  be  determined  from  time  to  time  by 
population.  The  councilmen  elected  on  general  ticket  ought 
to  have  longer  terms  than  the  others,  thus  giving  a  certain 
element  of  permanency  to  the  city  legislature,  and  making  the 
positions  in  the  gift  of  the  city  at  large  more  desirable  and  im- 
portant. 

Perhaps  some  system  of  proportional  representation  should 
be  adopted  in  elections  to  the  city  council.  This  is  a  much 
debated  question  at  the  present  time.  It  does  not  seem  to  be 
an  easy  task  to  find  a  method  of  proportional  representation 
that  will  work  smoothly  and  exactly.  It  is  also  objected  that 
under  this  system  members  chosen  by  parties  would  lose  the 
feeling  of  responsibility  to  the  people  of  their  districts,  which, 
under  the  present  system,  attaches  to  legislators  as  the  sole 
representatives  of  both  the  majority  and  the  minority  of  their 
constituents.  It  seems  probable  that  more  conservatism  is  re- 
quired of  a  legislator  who  must  be  able  to  command  a  major- 
ity of  the  votes  of  his  constituents  for  his  re-election,  than  of 
one  who  may  be  re-elected  even  if  the  opposition  comes  into 
the*  majority.  Proportional  representation  seems  calculated  to 
strengthen  the  hold  of  party  government  by  making  a  strong 
organization  necessary  for  every  faction  that  desires  to  be  rep- 
resented. Whether  party  government  is  a  good  or  an  evil  is 
an  open  question.  Most  people  recognize  parties  as  a  neces- 
sity. If  they  are  a  good,  then  it  may  be  well  to  strengthen 
them  by  entrenching  them  in  law.  If  they  are  an  evil,  per- 
haps they  may  have  to  be  entrenched  in  law  in  order  to  be 
regulated.  If  the  objections  to  proportional  representation 
can  be  overcome,  it  may  succeed  in  bringing  us  nearer  to  pure 
democracy.  The  idea  of  having  every  political  sect  repre- 
sented in  the  legislature  according  to  numbers  is  not  strictly 
in  line  with  the  established  idea  of  republican  or  representative 
government.  It  aims,  rather,  at  a  new  form  of  democracy,  by 
1  Shaw,  "  Munic.  Gov't  in  Continental  Europe,"  pp.  32-35. 


MUNICIPAL  GOVERNMENT 


[490 


which  the  whole  mass  of  the  people  is  reproduced  in  miniature 
in  the  legislative  body.  If  this  is  a  possible  and  desirable 
thing,  it  can  best  be  tried  in  cities  where  the  people  are  nearer 
to  each  other,  and  have  more  uniform  interests. 

There  is  room  for  many  differences  in  the  detailed  organiza- 
tion of  the  city  administration.  The  Cleveland  system  of  de- 
partments, copied  from  the  National  administration,  gives  a 
good  illustration  of  almost  complete  centralization.  The  organ- 
ization by  boards  placed  at  the  head  of  the  several  departments, 
and  still  under  the  mayor's  control,  might  offer  the  advantages 
of  deliberation  in  the  management  of  parks,  water  works, 
sewers,  police,  etc.  At  any  rate,  to  insure  an  efficient  admin- 
istration, a  permanent  staff  of  officers  and  clerks  is  required  in 
each  highly  developed  department.  Hence  the  civil  service 
should  be  subject  to  rules  that  will  insure  merit  as  the  basis  of 
appointment.  The  idea  of  party  representation  on  boards  and 
among  appointees,  seems  to  be  entirely  opposed  to  sound  prin- 
ciples of  administration.  Under  a  party  system  "  spoils"  should 
certainly  belong  to  the  victors.  But  there  is  no  reason  for  re- 
garding the  ministerial  civil  service  as  spoils  in  any  intelligent 
system  of  party  government. 

While  we  may  regard  the  mayor  system  as  the  best  form  of 
city  organization  under  existing  American  conditions,  it  can 
hardly  be  accepted  as  the  ultimate  type.  It  is  sometimes  said 
that  an  all-powerful  mayor  can  make  a  very  good  government 
or  he  can  make  a  very  bad  government  for  the  city,  but  at  any 
rate  he  can  be  held  responsible  by  the  people  at  the  next  elec- 
tion.1 This  theory  seems  to  be  based  on  conditions  that  ought 

1  In  a  personal  letter,  dated  March  5,  1896,  in  response  to  an  inquiry  about  the 
working  of  the  new  Cleveland  charter,  Judge  Blandin  said  : 

"Your  apprehension  that  an  unified  administration  would  tend  to  become  a 
big  partisan  machine,  was  the  current  opinion  here  when  the  plan  was  proposed, 
and  was  made  use  of  with  very  great  effect  by  those  who  opposed  its  adoption. 
The  working  of  the  scheme  has  entirely  disappointed  their  expectations,  and  proved 
the  groundlessness  of  their  fears.  On  the  contrary,  the  first  two  mayors  who  were 
elected  under  the  new  charter  were  unable  to  secure  their  re-election,  although 


49 1  ]  IN  MICHIGAN  AND  OHIO.  !  73 

not  to  last.  It  means  simply  that  the  people  are  too  busy  to 
take  a  continued  interest  in  self-government,  they  are  tired 
of  being  imposed  on  by  the  professional  politicians,  and  so  they 
will  choose  one  man  to  govern  them  and  hold  him  responsible 
at  the  end  of  his  term.  Now,  the  science  of  good  government 
cannot  be  learned  in  one  day,  even  by  a  man  responsible  to  the 
people  of  a  great  city.  Under  these  conditions  the  people 
choose  some  man  to  give  them  a  good  government,  and  the 
next  day  after  election  return  to  their  individual  vocations, 
thinking  their  duty  is  done.  But  there  are  in  all  of  our  cities 
a  class  of  professional  politicians  who  do  not  weary  of  the  de- 
tails of  the  administration.  If  the  mayor  has  to  be  taught,  these 
men  teach  him.  He  sees  the  public  will  through  their  eyes, 
and  becomes  dependent  upon  them.  The  next  mayor  is  likely 
to  be  one  whom  the  people  do  not  choose.  The  mayor  system 
seems  to  be  a  remedy  for  city  misgovernment  adopted  in  im- 

they  gave  a  moderately  fair  administration.  The  politicians  were  unable  to  real- 
ize their  usual  advantage,  and  blamed  the  administration  for  it.  They  should  have 
blamed  the  plan. 

"The  present  administration  is  unlike  the  two  former  ones,  highly  unpopular 
with  the  best  people.  The  mayor  has  made  every  effort  to  build  up  a  political 
machine  within  the  city  government,  with  the  result  that  he  is  to-day  unpopular 
with  the  masses  of  the  people,  so  that  any  attempt  on  his  part  to  be  re-nominated 
or  re-elected  would  without  doubt  be  overwhelmingly  defeated. 

"  On  the  contrary,  the  school  director  in  this  city  under  a  plan  similar  in  princi- 
ple, has  been  twice  elected  and  has  every  prospect  of  being  re  elected  this  spring, 
and  has  given  an  unprecedentedly  good  administration  of  school  affairs.  I  think 
I  may  summarize  the  whole  situation  by  saying  that  our  experience  here  with  the 
new  plan  has  shown  that  a  capable,  honest  executive  would  have  more  chance  of 
retaining  his  place  than  any  one  who  sought  to  make  the  office  the  head  of  a  po- 
litical engine.  In  short,  exactly  the  opposite  of  what  you  anticipate  has  been  our 
experience.  The  reason  for  this  is  that  the  masses  of  the  people  everywhere  de- 
sire good  government.  Under  our  scheme  their  entire  efforts  can  be  concentrated 
substantially  upon  the  one  office  ;  and  the  people,  having  this  opportunity  to  choose, 
usually  choose  aright.  In  the  election  of  a  multitude  of  officers  at  one  time,  of 
course  choice  is  practically  out  of  the  question;  and  the  primaries  of  the  dominant 
parties  name  the  public  officers.  I  believe  it  to  be  the  general  opinion  here  that 
our  plan  of  city  government  defeats  rather  than  promotes  the  establishment  of  a 
powerful  political  machine." 


MUNICIPAL  GOVERNMENT  [492 

patience  and  depending  for  its  efficiency  on  the  spasmodic  rise 
of  civic  interest  among  a  busy  population,  with  little  sense  of 
unity.  If  our  political  ideals  do  not  come  to  dismal  grief,  the 
American  city  must  in  time  develop  a  social  consciousness  of 
its  own  identity,  and  its  population  must  gain  experience  in  self- 
government.  When  these  two  things  come  to  pass  to  any  great 
extent,  it  is  likely  that  the  dictatorial  mayor  will  have  to  give 
way  to  a  less  arbitrary  executive.  It  seems  strange  that  little 
or  no  attention  has  been  given  to  the  idea  of  introducing  par- 
liamentary or  cabinet  government  into  cities.  Probably  this 
can  be  explained  by  the  fact  that  this  system  is  strongly  polit- 
ical, while  old-world  cities  and  new-world  reformers  believe 
that  city  affairs  are  economic.  If,  however,  we  go  on  along 
the  lines  marked  out  by  our  past  experience,  though  perhaps 
faintly  marked,  we  shall  develop  a  fusion  of  business  and  poli- 
tics in  city  affairs ;  democracy  in  politics  and  in  economics  will 
meet  in  the  city  hall.  When  questions  of  local  financial  policy, 
including  the  city  ownership  of  street  railways  and  electric 
lighting  plants,  really  come  to  be  recognized  as  political  ques- 
tions, we  shall  be  a  long  way  toward  the  realization  of  this 
ideal.  The  parliamentary  system  is  admirably  fitted  to  com- 
bine administrative  efficiency  with  political  democracy.  The 
tenure  of  the  executive  is  so  precarious  that  the  business  of 
administration  simply  has  to  be  entrusted  to  a  corps  of  perma- 
nent officials. 

But  whatever  form  our  future  municipal  charters  may  take, 
it  seems  tolerably  certain  that  we  shall  work  out  the  problem 
of  democracy  in  the  cities.  It  is  not  important  that  all  cities 
should  have  the  same  governmental  organization.  The  neces- 
sary thing  is  that  they  shall  be  allowed  free  self-development, 
while  the  civic  spirit  in  them  is  encouraged.  This  may  possi- 
bly be  best  accomplished  by  granting  them  the  right  to  form 
their  own  charters,  as  is  now  done  in  the  larger  cities  of  Mis- 
souri, California  and  Washington.  The  relation  of  the  city  to 
the  state,  and  the  duty  of  the  state  to  the  city,  will  be  the  sub- 
ject of  the  next  chapter. 


CHAPTER  X. 

THE    CITY    AND   THE    COMMONWEALTH. 

THE  two  methods  of  dealing  with  the  evils  of  special  legis- 
lation for  cities  which  we  have  seen  tried  in  Michigan  and 
Ohio,  have  not  been  successful  in  meeting  the  difficulties, 
although  the  Michigan  plan  has  not  failed  so  utterly  in  accom- 
plishing its  purpose  as  the  Ohio  plan  has.  The  greatest 
obstacle  to  the  solution  of  the  problem  lies  in  the  genuine 
distrust  of  the  political  capacity  of  city  populations  felt  by  the 
rural  communities.  It  seems  that  there  is  a  real  foundation 
for  this  distrust.  Many  thoughtful  critics  of  the  cities  would 
attribute  their  incapacity  for  self  government  to  their  relatively 
large  proportion  of  foreign-born  citizens.  This  observation 
doubtless  carries  great  weight,  but  there  are  other  important 
factors  in  the  problem.  To  be  a  good  citizen  of  a  large  urban 
community  requires  a  greater  degree  of  self-restraint  and  a 
wider  intelligence  than  to  be  a  good  citizen  of  a  rural  town- 
ship. The  functions  of  government  are  much  more  vital  in 
the  city.  Water,  light,  drainage  and  transportation,  the  very 
essentials  of  every  individual's  every-day  life,  must  come 
directly  through  the  government  or  under  government  con- 
trol. There  is  no  need  to  argue  further  that  the  governmental 
demands  upon  the  citizenship  of  cities  are  of  a  more  exacting 
nature  than  those  upon  rural  folk.  On  the  other  hand,  leav- 
ing aside  the  difference  in  the  race  elements  of  population, 
there  seems  to  be  good  reason  to  think  that  the  mere  fact  of 
aggregation  tends  to  reduce  the  average  political  capacity  of 
citizens.  Along  with  the  opportunity  for  culture  and  wide  in- 
telligence furnished  by  city  life,  there  comes  an  intense 
493]  175 


176  MUNICIPAL  GOVERNMENT  [494 

economic  struggle  which  absorbs  the  energies  of  the  more 
substantial  citizens.  The  crowded  conditions,  the  high  cost  of 
living,  the  extreme  development  of  pleasure-giving  institutions, 
the  very  noise  on  the  pavement,  all  unite  to  destroy  or  prevent 
the  habit  of  reflection  in  the  people.  They  have  no  time  to 
think.  There  is  no  solitude,  except  the  awful  solitude  of  the 
stranger  in  a  large  place.  A  reasonable  degree  of  opportunity 
for  the  slow  grinding  process  of  thought  is  one  of  the  essen- 
tial elements  in  the  development  of  political  capacity.  People 
in  great  cities  have  always  tended  to  herd.  There  is  a  popu- 
lace. 

Thus  it  appears  that  democracy  is  really  being  put  to  an  ex- 
traordinary test  in  our  great  cities.  There  the  nature  of  gov- 
ment  is  more  economic  and  its  functions  more  varied,  and 
hence  a  greater  political  capacity  and  experience  are  required 
of  the  citizens.  But  not  only  the  mixed  race  elements,  but 
also  the  very  conditions  of  city  life,  tend  to  lessen  the  develop- 
ment of  these  characteristics,  at  least  for  the  time  being.  The 
people  of  the  states  have  apparently  had  good  reason  to  dis- 
trust the  people  of  the  cities  in  matters  of  self-government. 
Whether  this  distrust  is  short-sighted  is  another  question. 
"  Home-rule  "  is  the  war-cry  of  municipal  reformers  now,  and 
has  in  its  favor  one  very  strong  argument,  not  the  inher- 
ent right  to  self-government,  but  the  fact  that  only  by  throw- 
ing a  full  degree  of  responsibility  upon  the  cities  can  their 
tendency  to  political  degeneration  be  overcome  and  a  true 
civic  spirit  aroused.  It  is  a  life  and  death  question,  for  what 
is  to  become  of  democratic  government  when  the  majority  of 
the  people  live  in  cities,  unless  we  have  taken  pains  to  make 
those  cities  responsible  self-governing  communities  ?  Of 
course,  we  cannot  hope  to  legislate  good  citizenship  into  large 
masses  of  people  off-hand.  But  there  is  no  question  but  that 
the  form  of  government,  especially  by  its  placing  of  responsi- 
bility, can  greatly  help  or  greatly  hinder  the  growth  of  capable 
and  honest  citizenship.  Still  we  must  not  be  too  hasty  in 


495]  IN  MICHIGAN  AND  OHIO. 

granting  complete  local  autonomy  in  local  affairs ;  for  our  peo- 
ple are  impatient  of  failure,  and  are  quite  ready  to  abandon  ex- 
periments before  they  have  been  fully  tried.  But  in  the  exist- 
ing state  of  political  affairs,  the  gravest  duty  devolving  upon 
the  people  and  the  legislatures  of  the  several  commonwealths 
in  their  governmental  capacity  is  the  careful,  honest  and  sym- 
pathetic encouragement  of  municipal  capability  and  responsi- 
bility in  the  management  of  municipal  affairs. 

There  being  no  centralized  administration  in  the  several 
commonwealths  of  the  union,  the  only  central  control  over 
municipalities  has  been  that  exercised  by  the  state  legislatures. 
This  control  has  expressed  itself  chiefly  in  the  special  acts 
which  make  up  so  large  a  part  of  our  volumes  of  session  laws. 
The  doctrine  of  the  enumeration  of  powers  has  greatly  limited 
the  competence  of  the  local  authorities.  Yet,  in  the  absence 
of  an  administrative  control,  the  very  principle  of  local  self-ad- 
ministration has  made  it  necessary  for  the  legislature  to  keep 
its  powers  of  interference  in  local  affairs  unhampered.  The 
system  of  legislative  control  has  proven  itself  entirely  inade- 
quate. Some  other  method  must  be  adopted.  The  obstacles 
in  the  way,  arising  from  our  historical  development,  do  not 
make  our  task  hopeless,  for  several  reasons.  First,  we  have  an 
example  of  centralized  administration  in  the  national  govern- 
ment, and  so  we  need  not  go  abroad  to  find  a  system  for  im- 
portation into  the  states.  Second,  as  has  already  been  re- 
remarked,  the  presence  of  such  a  large  proportion  of  foreign 
citizens  in  our  borders  will  render  us  more  ready  to  accept  the 
results  of  foreign  experience  in  matters  of  detail.  Third,  in 
our  own  courts,  notably  those  of  Michigan,  a  tendency  is  show- 
ing itself  to  define  more  or  less  sharply  the  line  of  cleavage 
between  purely  local  affairs  and  state  affairs  administered  by 
local  authorities.  Fourth,  notwithstanding  the  enumeration 
of  municipal  powers,  which  has  seemed  so  hopelessly  imbedded 
in  American  law  and  politics,  the  right  has  been  granted  to 
cities  to  form  their  own  charters  in  three  states  of  the  Union. 


MUNICIPAL  GOVERNMENT  [496 

This  may  be  the  opening  wedge  through  whose  application  the 
idea  of  larger  municipal  powers  may  be  adopted.  Fifth,  there 
is  a  very  strong  tendency  among  us  to  give  the  city  a  footing 
in  constitutional  law,  and  in  spite  of  failures  in  specific  meth- 
ods tried,  the  constitution-makers  have  not  become  discour- 
aged. Sixth,  our  universities  are  beginning  to  do  important 
work  in  the  study  of  municipal  science  and  comparative  con- 
stitutional and  administrative  law. 

The  position  of  the  American  city  as  an  organ  of  govern- 
ment is  peculiar.  In  spite  of  its  helplessness  in  law,  except 
for  specific  constitutional  provisions  in  this  state  or  that,  the 
city  is  continually  setting  up  the  claim  to  an  inherent  right  of 
self-government.  In  Michigan  this  doctrine  of  a  higher  law 
than  the  written  constitution  has  even  been  recognized  by  the 
Supreme  Court.  The  status  of  the  city  is  undetermined. 
There  are  conflicting  claims.  As  with  our  national  govern- 
ment under  the  Articles  of  Confederation,  law  and  fact  do  not 
coincide.  The  great  problem  of  our  future  politics  is  to  estab- 
lish on  a  firm  basis  the  legal  relations  of  the  city,  and  bring 
those  legal  relations  to  coincide  with  the  demands  of  the  city's 
natural  position.  The  city  is  in  fact  a  distinct  unit  in  its  pub- 
lic interests.  It  must  be  recognized  as  such  in  law.  There 
have  been  persons  willing  to  go  so  far  as  to  advocate  the  erec- 
tion of  New  York  city  into  a  separate  and  independent  com- 
monwealth of  the  Union.  This  suggestion  will  probably  not 
soon  be  carried  out,  but  if  it  were,  the  problem  of  city  govern- 
ment in  the  United  States  would  not  be  much  nearer  solution, 
for  it  would  not  be  possible  to  make  many  cities  into  separate 
states.  The  solution  will  have  to  be  worked  out  by  the  sev- 
eral commonwealths.  It  is  not  improbable  that  the  city  may 
introduce  into  the  federal  system  a  new  category  of  govern- 
ments.1 With  the  powers  of  state  and  municipal  governments 

1  In  the  Netherlands,  the  municipalities  as  well  as  the  provinces  are  recognized 
in  the  national  constitution,  and  their  position  is  thus  made  independent  of  the 
national  and  provincial  governments  to  some  extent. 


497]  IN  MICHIGAN  AND  OHIO.  j  79 

carefully  delineated  in  the  state  constitutions,  and  with  charters 
in  the  shape  of  self-framed  constitutions,  there  is  no  reason  why 
the  federal  experiment  should  not  be  elaborated.  The  great 
cities  themselves  cannot  be  completely  centralized.  The  spirit 
of  local  autonomy  by  districts  or  wards  will  come  to  be 
more  strongly  developed,  though  unity  of  administration  will 
always  be  more  necessary  for  the  city  than  for  the  common- 
wealth. 

If  we  intend  to  persist  in  the  trial  of  self-government,  the 
status  of  the  city  in  politics  must  be  determined.  It  is  hard 
now  to  discover  who  is  to  blame  for  city  misgovernment. 
The  habit  of  legislative  interference  is  so  strong  that  city 
populations  are  sure  to  be  thwarted  if  they  try  to  govern 
themselves  in  a  responsible  manner.  The  ultimate  solution  of 
the  problem  must  lie  in  the  greater  centralization  of  general 
administrative  functions  under  the  state  government,  and  the 
more  complete  localization  of  municipal  administrative  func- 
tions under  the  city  government.  The  Ohio  plan  of  prohib- 
iting special  legislation  altogether,  is  as  undesirable  as  it  is 
impossible.  It  is  law  on  an  arbitrary  basis,  and  refuses  to 
recognize  the  facts  of  local  and  special  legislative  needs. 
The  Michigan  plan  of  requiring  the  local  choice  of  local 
officers  may  be  in  the  right  direction,  but  it  certainly  is 
incomplete.  It  involves  the  essentially  illogical  idea  that  the 
Commonwealth  shall  make  the  laws,  but  that  the  locality 
shall  have  some  discretion  about  their  enforcement.  The 
experience  of  France  and  Germany  proves  that  it  is  not 
impossible  to  unite  state  and  local  functions  in  a  single  officer, 
but  in  that  case  his  responsibility  is  differentiated.  We  may 
at  least  conclude  from  our  study  that  any  constitutional 
solution  of  the  city  problem  must  have  regard  to  both  sets  of 
evils  now  existing,  those  primarily  affecting  the  state  and  those 
primarily  affecting  the  locality.  The  state  must  be  protected 
from  the  wastefulness  and  corruption  of  special  legislation > 
but  at  the  same  time  must  be  protected  from  anarchy  in  the 


MUNICIPAL  GOVERNMENT 


[498 


enforcement  of  its  general  laws.  The  city  must  be  protected 
from  state  interference  in  local  affairs  in  both  law-making  and 
administration. 


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